论不真正不作为犯的作为义务-法学专业论文.docxVIP

华 华 中 科 技 大 学 硕 士 学 位 论 文 II II Abstract Non-typical omission is a crime not expressly provided in criminal law, but it is common in reality. Early in nineteenth century, German scholars began to study non-typical omission. Since then, it has been a widely debated topic in criminal law study for two centuries. As the premise and foundation of non-typical omission, act duty decides its establishment condition and punishment means. Reasonable definition of act duty is conductive to coordinate and play the legal right protection function and freedom protection function of the criminal law, and is beneficial to promote the criminal law theory development and judicial practice progress as well. The thesis firstly defines the act duty of non-typical omission as a basis, and then refers to the act duty theory of Germany and Japan, so as to study and investigate the act duty of non-typical omission offense with the combination of China’s theory and judicial practice. The thesis is divided into four parts: The first section is an overview of the act duty of non-typical omission. It introduces non-typical omission concept, discusses the relationship between non-typical omission and the principle of statutory crime and penalty, defines the act duty of non-typical omission, and analyzes the position of the act duty of non-typical omission in criminal system. The second section investigates and refers to the act duty theory in German and Japan. The act duty theory of German and Japan experienced an evolution process, from formal act duty theory to substantial act duty theory, and then to the combination of formal and substantial act duty theory. We should learn from them the dual act duty theory which combines formal act duty theory and substantial act duty theory. The third section investigates the judicial challenges of China’s act duty common theory. After studying the formation and content of China’s act duty common theory, the thesis discusses and responds the meaning and