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Omission of not

Author: XuZhiQiang
Tutor: PeiGuangChuan
School: China University of Political Science
Course: Legal
Keywords: Not Omission Causality Source of obligations Command specification Criminal Law Positive behavior Referee specification Constitute a crime Normative structure Prohibit specification
CLC: D924.1
Type: Master's thesis
Year: 2005
Downloads: 409
Quote: 2
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Abstract


This article is not Omission exposition. Text is divided into five chapters. Were never Omission of concepts, norms structure, causality; does Omission relationship with the principle of legality, not the obligation Omission sources and other aspects are discussed. This paper argues that not Omission of omission have behavioral Criminal behavior is a form of expression. Criminal Law is not as guilty of criminal law is not required for the implementation of a positive behavior crimes. Omission can be divided into Omission and non Omission. The so-called non-Omission is active on the criminal law did not fulfill the obligation to conduct a serious threat to society, in line with criminal law, but also to the composition as a form of crime. Impure not as pure as a crime and crime is a violation of criminal law command specification. Just do not Omission of the command specification is violated and the prohibition norms coexist in a referee norms among the Omission breached command specification is alone in being a referee specification. Both reflected in the difference as to constitute a crime, not pure omission can constitute a crime by the constitution as a way; and pure omission constitute crimes but only by way of omission constituted. In the analysis of the non-Omission multiple causation theory, this article affirms not Omission of causality. And pointed out that no Omission causality divided into two cases. First, the result is to promote the cause; secondly, so that the results can not be avoided is the reason. The mode of action of both have their own characteristics. And pointed out that, as an obligation not do not Omission elements of causation, but criminal law objective causality assessment criteria. This article points out, according to China's existing criminal law does not criminalize Omission punishment is contrary to the principles of legality, but based on multiple benefits weighed against Omission should not handle. Only in the future, in addition in the General Council should not Omission requirements. Omission and not guilty of the same crime as constituted only objective element in determining conformance, do not Omission has special conditions. This paper argues that not Omission sources can be divided as the obligation to form and substance. As a source of obligation is limited to the form of legal obligation, not a moral obligation as an obligation in the form of source. Previous behavior was not as an obligation in the form of separate sources should be based on different situations specific distinction. As a substantive obligation sources include: legal interests urgency of the risk of harm; legal interests dependent on the perpetrator has; perpetrator of the legal interests dominate specificity; without the consequences of the criminal law as a negative. Omission of non-determination as an obligation, first of all, should be based on the source as an obligation in the form of scoping, and secondly, according to the source of the substance as an obligation to make reasonable limit.

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