Research On Equivalence In Offense Of Non-typical Omission

According to China’s traditional criminal law,there are three main objective conditions for constituting the offense of omission:the doer has a specific act duty,the doer is capable of fulfilling the duty,and the doer’s failure to perform his duty results in consequences.However,the “act duty” cannot take on the responsibility of interpreting the illegality of offense of non-typical omission.In addition to the theory of act duty,the theory of equal-value also aims to provide justification of punishment for offense of non-typical omission.It is not only necessary but also possible to recognize the role of equal-value in the theoretical system of criminal law.Firstly,both omissions and acts are within criminal law actions,and whether the action is an act or omission needs to be judged from the the perspective of equal-value.Secondly,the lack of omission in the structure of existence can only be filled by value evaluation,and the identity of the norm-violating nature of offense of non-typical omission is the reason for the necessity of the equal-value’s judgment.Lastly,the equal-value’s requirement of offense of non-typical omission is a common legal matter that constitutes the offense of non-typical omission,which can only be compensated for the existence of offense of non-typical omission by means of value complement.The significance of the equal-value is to determine the harmful nature of omission by referring to the offence of act.Equal-value must include all the illegal elements that are equivalent to the offence of act for committing a crime.Therefore,the role of the judgment of equal-value should be an independent and integral evaluation factor in the system of criminology.In the theory of criminal law of the continental law system,the objective and subjective theories of the judgmental standard of equal-value have been more matured.In recent years,although there have been various theories and viewpoints,the judgemental standard of equal-value is basically constructed based on the objective aspects.Due to the one-sidedness of interpreting legal interest of illegality,the standard of constructing equal-value with the protection of legal interest as the core cannot assume the system to be functioned by equal-value.From the perspective of social correspondence theory,the norm of criminal law is also known as the code of conduct.When judging whether an infringement has reached the possibility of denunciation,it is also necessary to consider what the content and where the boundaries of the actions can be tolerated by society.The criteria for judging the establishment of offense of non-typical omission should include five elements: the act duty,non-fulfillment of duty,the possibility of fulfilling duty,the occurrence of harmful results,and the equal-value between an act and omission.Among them,the first four elements reflect the requirement of the valuelessness of the result as a whole;and the fifth element,an act or omission with equal-value,reflects the requirement of the valueless conduct on the basis of the valuelessness of the result.The judgemental standard of equal-value should be closely related to both facts and values,judging the normality of conduct from the perspective of social facts,as well as the appropriateness of omission from the perspective of normative value.