As a general principle, criminal liability cannot be imposed on those who fail to act. Therefore, when you see a blind man walking on the edge of a cliff and he falls into the abyss because you failed to warn him in time, you will not be considered to have committed a crime because you have no legal obligation to warn him. Even if it is easy for you to shout at a blind man to warn him of the danger ahead, or even if you viciously hope that the blind man will fall into the abyss and die and deliberately do not warn him, the result is not a crime. The orthodox view is that the law can only prevent people from doing bad things, but cannot force people to do good things. Is the punishment of inaction an infringement of the freedoms that modern people hold sacred? But in modern times, in addition to freedom, there are also public interests that need to be protected. Modern law strives to find a balance among these. When one person has a duty to another, certain restrictions on freedom caused by punishing such omission are less problematic than imposing responsibility for omission on a passer-by. In the UK, this balance is a policy choice: some other countries have enacted laws that stipulate that passers-by who are easy to rescue but fail to rescue can also commit a crime called the crime of failure to rescue. In the field of criminal law, inaction has long been regarded as a "monster". Fundamentally speaking, the modern penal system centered on freedom was established to prevent people from committing certain behaviors. The main purpose of traditional criminal law is to maintain the existing legal system, and only positive actions may infringe on the legitimate interests of others. . The modern social rule of law, which takes solidarity and mutual assistance as its basic principle, requires social members to cooperate with each other to achieve the purpose of the law. Therefore, the provisions on the obligations of actors in the criminal law began to increase, and now it has become an integral part of the entire penal system that cannot be ignored. No one in modern times would think that a mother strangling a nursing baby to death with her hands is murder, and starving a baby to death by not doing anything, such as not breastfeeding, does not constitute a crime because "nothing has been done." Therefore, whether crimes of omission should be punished is an issue that cannot be discussed. What we have to do is how to reasonably punish those who do not act.

1. A brief review of the theory of crimes by omission

Punishing for inaction means forcing others to perform certain actions, which restricts freedom of movement. Therefore, one must be as careful as possible. Feuerbach, the originator of modern criminal law, pointed out more than two hundred years ago that crimes in principle are limited to crimes of commission, and crimes of omission only occur when there is an obligation to act based on "a special legal basis (law or contract)". was recognized as an exception. Although for a long time, people have been troubled by the issue of whether punishing omission violates the legal principle of criminal punishment and the causal relationship of the crime of omission, but now people's understanding is that the basic problem of the crime of omission is that , under the conditions that do not prevent the constitutive elements from occurring, they can be regarded as the results caused by positive actions. In a word, the core issue of the crime of omission lies in the determination of the scope of the obligation.

In common law, the legal obligations of omission mainly include: (1) family relationships (for example, parents have the obligation to provide food, shelter and clothing for their children); (2) obligations stipulated by law (For example, many countries stipulate that medical institutions or their relevant personnel have the obligation to report when they find that a child is suspected of being abused); (3) Contract for providing care (for example, nurseries usually enter into contracts with residents to take care of children); (4) ) Obligations arising from voluntary undertakings (for example, bringing a patient home creates an obligation to take care of the patient); (5) Obligations resulting from dangerous behavior (for example, accidentally pushing a person who cannot swim into a deep lake creates an obligation to take care of the patient) The obligation to take reasonable measures to rescue); (6) Obligations arising from the possibility of dominating the behavior of others (such as the obligation of a company manager to stop a driver driving for the company from speeding); (7) Obligations of owners (for example, a theater's The owner has the obligation to provide safe emergency exits for patrons visiting the theater). The U.S. Model Penal Code stipulates that the perpetrator can be held criminally responsible for failure to act under two circumstances: one is the obligation clearly stipulated in statutory law, and the other is the obligation that the perpetrator must perform under civil law.

In civil law countries, scholars will only recognize scope typing as an obligation. For example: (1) Obligation to prevent based on prior conduct; (2) Obligation to prevent by managers; (3) Obligation to inform recognized in the principle of good faith; (4) Obligation to protect recognized customarily, etc.

Domestic scholars believe that the basis for obligations includes the following types: (1) Obligations expressly stipulated by law; (2) Obligations required by job or business; (3) Obligations arising from legal acts; ( 4) Obligations arising from prior acts.

Judging from the types of obligations, they are similar at home and abroad. The question is how to accurately grasp them from the theoretical and practical perspectives.

2. The specific development of the theory of crime of omission

(1) The distinction between action and omission

Why should we distinguish between action and omission? Punishing a crime of omission presupposes the obligation to act. Therefore, if an act is determined to be an omission, it must be determined that it has an obligation to act, otherwise it cannot be punished. This is one of the reasons. Secondly, since omission is different from the behavioral structure of action and the type of behavior is different, the identification of the start, the identification of completed and unfinished forms, and the identification of causal relationships will be significantly different. The specific content will be expanded later.

But distinguishing between action and inaction is not easy. A man accidentally crushed a policeman's foot under the wheel. When told that he should immediately start the vehicle to free the poor policeman's foot, the man refused to do so and instead got out of the car and walked away on his own. Is this person’s behavior an act or an inaction? The end result was that the man was charged with assaulting a police officer. A pedestrian was killed when a car driver continued to drive forward at a red light at an intersection. Action or omission? From the perspective of driving forward when you should not do so (doing something you should not do), it is an act; from the perspective of braking when you should brake but not doing it (doing something you should do but not doing), it is an omission. The author imagines that a person caused a traffic accident and ran another person under the wheel. When he got out of the car, he saw that it was the enemy he had long wanted to kill, so he walked to the edge alone. As he wished, his enemy died a violent death. So is this person’s behavior an act or an omission? Should he be held criminally liable for traffic accidents due to negligent acts or intentional homicide due to omissions, or should he be punished for both crimes? It seems that distinguishing between action and omission is not an easy task.

Domestic scholar Dr. Li Hong believes that when the situation of legal interests is worsened, it is an act; when it is not worsened, it is an omission. The author believes that this standard is basically feasible, but normative evaluation is indispensable under specific circumstances. For example, if you run someone under the wheel without any fault, the criminal law cannot evaluate the fault-free act, but it can evaluate the inaction of not driving away quickly after discovering that someone was run under the wheel. You only need to evaluate one omission. If the driver negligently ran someone under the wheel and failed to move the wheel quickly after discovering the situation, then both the negligent act that caused the traffic accident and the subsequent inaction should be evaluated. Is this a hit and run? People run away, but cars don’t. I'm afraid it's difficult to treat it as a traffic accident. The author prefers that multiple crimes should be punished in this case. This will be discussed later.

(2) Transformation of negligent behavior (including omission) into intentional omission

(1) Can antecedent negligent behavior such as negligence causing injury or fire become the source of obligations? ? Does failure to act constitute a crime of intentional omission?

Common law jurisprudence holds that the defendant has an obligation to avoid damage caused by his own accidental behavior (R V Miller (1983)). In Japan, both theory and jurisprudence hold that a person who creates an imminent danger of a result due to his or her antecedent act must bear the obligation to prevent the result. For example, a car driver who accidentally runs over a pedestrian should rescue the pedestrian; a person who causes a fire due to his negligence must put out the fire (maximum sentence 33.9.9 [arson]).

As mentioned earlier, scholars basically believe that the source of obligations includes obligations arising from antecedent acts. After a fire breaks out, if a person sits by and watches the fire burning without putting out the fire, most people will be inclined to be convicted and punished for arson. But the problem is that the mason accidentally dropped a brick from the roof and hit a pedestrian on the head. Instead of coming down or calling others to help, he sat on the roof and watched the pedestrian bleed the last drop of blood and die. I am afraid there are many People tend to convict people of negligence causing death. However, the author believes that it is obviously against the legal feelings of ordinary people to convict a person for the crime of negligent death if he can be rescued but fails to do so, so that he is allowed to die.

Because people usually think that taking a neighbor's child to swim is not even illegal. If the child is in danger and the child drowns because he fails to rescue him, he can be convicted of intentional homicide by inaction. Comparing the two, it is obvious that the evaluation of punishment is too disparate. Therefore, if someone negligently puts the health or life of another person in danger and is able to provide rescue but deliberately fails to do so, he should be convicted and punished for the crime of intentional injury or intentional homicide. Will this lead to excessive penalties? The author believes that although people usually think that crimes of omission are less harmful to society and less morally reprehensible than crimes of omission, there are also legislative examples abroad that can give lighter punishment to crimes of omission, such as Article 13, paragraph 2, of the German Criminal Code However, the statutory penalty for intentional homicide in our country’s criminal law ranges from death to three years’ imprisonment. Therefore, convicting someone for intentional homicide is an appropriate qualitative evaluation, and the punishment will not be too harsh in terms of execution.

(2) If traffic behavior causes an accident, can the perpetrator's escape be punished as intentional omission

According to common law, a car driver who crashes into a car due to negligence (or even no negligence) If a pedestrian kills a pedestrian, he has an obligation to allow the victim to receive medical treatment. Failure to perform this obligation can constitute a crime of omission. German scholars believe that a car driver who obeys traffic rules does not have the status of a guarantor compared to a car accident victim who is fully responsible (Federal Court Criminal Judgment 25, 218 (221), endorsed by Rudolphi Commentary, "Law Review" 1974, page 160); however, if the driver himself violates traffic rules and his behavior is directly related to the traffic accident, the situation is different. The driver who caused the accident should send the victim to a doctor for treatment; otherwise, he may be punished for intentional homicide (Federal Court Criminal Judgment 7, 287 (288)). In Japan, the mainstream view is that even if someone runs over someone and then runs away, causing the victim to be in danger of death, the person will not be prosecuted for the crime of homicide due to inaction or the crime of abandonment of the person responsible for protection on the grounds of violation of the obligation to rescue. A prisoner who seriously injures another person to the point of death and intentionally escapes without necessarily killing him does not act to rescue the victim when the possibility of the victim being rescued is high, such as in front of a hospital in a city with many pedestrians during the day. It is difficult to call it an act of homicide. On the contrary, if the victim was left on a mountain road without pedestrians late at night in the cold winter, it might be an act of homicide.

Domestic scholars seem to be hesitant on the issue of whether the crime of intentional homicide can be negated if a traffic accident causes death. On the one hand, they believe that the perpetrator has a duty to rescue, but on the other hand, they are worried that if the crime of intentional homicide is determined, most of the negligent crimes will be converted from one crime to two crimes. In fact, since the perpetrator of a fire intentionally fails to put out the fire, it can be converted into the crime of arson. Even if the prior behavior without fault causes the legal benefits to be in danger and the failure to save the fire can also constitute the crime of homicide by omission, then, after a traffic accident, the victim's health or If the victim's life is in danger and he fails to actively rescue him, causing the victim to turn from minor injury to serious injury, or from injury to death, is there any reason why he cannot be charged with intentional injury (serious injury) or intentional homicide? Yes, the mainstream view in Japan is that it does not admit that hit-and-run behavior under normal circumstances should be punished as intentional homicide by omission. However, the author noticed that in the Japanese Penal Code, the statutory penalty for the crime of negligent negligence causing death is a fine of not more than 500,000 yuan, while those who cause death due to professional negligence are subject to punishment or imprisonment of not more than five years. Obviously, the penalties for business negligence crimes such as traffic accidents are much higher than ordinary negligence crimes. Therefore, in Japan, ordinary traffic accidents that cause death or injury are conceptually considered to be based on the original business negligence causing death or injury. Conviction and punishment can be proportionate to the crime and punishment. However, in our country, the maximum statutory penalty for ordinary negligence causing death is only seven years, which is the same as the maximum statutory penalty for general business negligence crimes. Therefore, legislators believe that if a general traffic hit-and-run accident results in death, the maximum penalty can only be seven years in prison, which cannot be consistent with the crime and punishment. In fact, a traffic accident that results in death can be considered a crime of abandonment if it is a crime that only causes danger to the victim's life when people are passing by and he may be rescued. If the crime is in a sparsely populated area, the victim's life is completely dependent on the perpetrator's rescue. , in this case, if the failure to provide assistance leads to the death of the victim, he should be convicted and punished for intentional homicide by omission.

However, the legislators considered that it would be difficult to gain support in theory if two crimes were imposed. In practice, whether it constitutes the crime of abandonment or the crime of intentional homicide of omission is also a question. Therefore, they chose the current method of targeting all traffic The statutory penalty of seven to fifteen years' imprisonment is specifically stipulated for the act of hit-and-run causing death, so that the act of causing the traffic accident itself and the abandonment or intentional inaction of the victim who died in the traffic accident can be punished together on the evaluation.

In addition, if the driver has no fault and the "victim" is fully responsible for the accident, does the driver have an obligation to rescue the other party? If the driver "escapes" and causes the other party's death, can the driver be convicted? If so, what crime should he be convicted of?

First of all, it must be affirmed that since the driver was not at fault for causing the accident, he cannot be held criminally responsible for traffic accidents. Secondly, we consider that the victim crashed into a motor vehicle that you were driving at high speed, which is objectively highly dangerous to pedestrians. He did not crash into your car that was parked securely at a reasonable location, nor did a person who wanted to commit suicide suddenly suddenly He ran over and crashed into the south wall of your house. In a word, objectively the victim crashed into your motor vehicle, which is itself highly dangerous. Although you did not have any fault, you were faced with a vehicle that you might die immediately if you did not rescue him in time. life, and rescue is not too expensive for you. The author prefers that the driver has the obligation to rescue. If the victim dies due to failure to rescue, it may constitute the crime of abandonment. Of course, the punishment can be appropriately lenient. This issue requires further research.

(3) Discussion on the criminal form of the crime of omission

Luden divided omission into pure crimes of omission and non-pure crimes of omission. proposed first. This does not mean that there are no objections to this classification, but it is now generally recognized by scholars. In civil law countries, some people believe that pure omission crimes are the counterpart of pure conduct crimes, while impure omission crimes are the counterpart of result crimes. There is a domestic view that a crime only constitutes a crime when omission has caused harmful consequences. This view has certain rationality in terms of requiring equivalence between omission and action. However, whether an omission is equivalent to an action does not only depend on whether a result occurs; when the criminal law stipulates that the establishment of a certain crime does not require the occurrence of harmful results, omissions that do not cause harmful results may also constitute a crime. In fact, a crime of omission may be a crime of conduct or a crime of result, a crime of danger or a crime of actual harm. For example, the crime of abandonment is an act crime and a crime of actual harm. Murder by omission is a crime of consequence. Arson by omission is both a dangerous crime and a crime of consequence. In this case, when we analyze the completion, preparation, or suspension of a specific crime of omission, we can only conduct a specific analysis from the purpose of criminal law, that is, from the perspective of the degree of infringement of legal interests and the perspective of better protection of legal interests. The author prefers to treat the crime of abandonment and the crime of dereliction of duty by omission, such as the crime of major liability accidents and the crime of dereliction of duty, as actual perpetrators. That is to say, only if actual serious damage is caused, a crime will be established. The crime of tax evasion, the crime of refusing to provide evidence of espionage crimes, and the crime of invading a citizen's residence without retreating will either not constitute a crime if they do not cause serious consequences, or they will be treated as dangerous criminals. There is room for existence. The crime of homicide by omission is the same as the crime of homicide by act. The crime of arson by omission is the same as the crime of arson by commission, and is a dangerous crime. However, it cannot be considered that as soon as a dangerous state is created, it is completed, causing the arsonist to lose the opportunity to establish a criminal suspension, which is not conducive to the effective protection of legal interests.

Is the crime of omission a summary crime, a status crime, or a continuing crime? The author believes that in principle, the impure crime of omission is the same as the corresponding crime of action. For pure omission crimes, they can basically be considered as continuing crimes. Of course, this is only a general principle. For specific crimes of omission, specific analysis should be carried out based on the principle of legal interest protection.

(4) The issue of inaction and euthanasia

How is inaction connected with euthanasia? Let us first look at a British case (Airedale NHS Trust v Bland(1933)Hl). This case is about the controversy surrounding the withdrawal of a life-sustaining device that has no medical hope of cure.

British scholars said that in the case of Alidale NHS Trust Company v. Bland (the above-mentioned case - cited by the quote), the distinction between omission and action was the basis for making an important judgment. B was the victim of the unfortunate incident at Hillsborough Stadium and spent three and a half years in a vegetative state with no hope of recovery or improvement from a medical point of view. With the support of B's ??parents, the Trust applied for a declaration that they would legally stop continuing to provide artificial respiration, nutrition, infusion and medical treatment to B, allowing him to die peacefully. The temporary guardian appointed by the Supreme Court for B disagreed. The application held that stopping the supply of food would constitute murder. The judge granted the application and made the announcement. The House of Lords upheld the Court of Appeal's decision. There is no doubt that there was intention to kill. The purpose of taking the above actions is to terminate B's life. Injecting a lethal drug with the intention of killing or committing any similar act is generally considered to constitute murder. But the above practices are considered omissions, not actions. Lord Goff said: "The question is not whether the doctor took steps to kill his patient, or took steps to hasten his death. The question is whether the doctor should or should not have continued to provide the patient with medical treatment that would prolong his life." Lord Goff also said It is difficult to say that terminating medical treatment is in the best interest of the patient, but it can be reasonably argued that continuing treatment is not in the best interest of the patient. "Terminate" and "do not continue" appear to mean the same thing. However, the former expresses actions, which are not allowed, while the latter expresses omissions, which are allowed.

From the above cases, the author thought that the so-called passive euthanasia in foreign countries, which refers to stopping continued treatment or withdrawing life-sustaining devices, is actually a matter of inaction. The act of omission is not only a matter of interpretation of the constituent elements, but also a matter of judgment between omission and action. If the patient's family members refuse to provide treatment under normal circumstances, that is, when there is hope for cure and treatment is necessary, this obviously constitutes the crime of abandonment. But if there is no possibility of cure and no need for treatment, there seems to be no reason to still think that there is an obligation to treat. Therefore, it does not constitute a crime of omission if the family members of a patient who is deemed to be medically unnecessary give up treatment. For doctors, they only have the obligation to treat patients who need treatment under specific circumstances. Therefore, if a doctor removes the treatment device according to the wishes of the patient's family or other guardians, it obviously cannot constitute a crime including omission.

In other words, when we discuss the legality of euthanasia, we must first exclude the so-called passive euthanasia that stops continued treatment or withdraws life-sustaining devices for patients who do not need treatment. Otherwise, it will be difficult to Engage in productive discussions about euthanasia.

(5) The problem of determining the crime of violating the duty of conduct

If one fails to put out the fire despite the obligation to put out the fire, should he be punished with the crime of arson? In Japan, when a fire breaks out, if a public servant requests assistance for disaster relief and fails to respond to the request, the crime of failure to provide assistance (pure omission crime) stipulated in Article 1, paragraph 8, of the Misdemeanor Crimes Act will be committed. The result of failure to provide assistance, even if Even if the house is completely burned down, the obligation to act by omitting to set fire (Article 108 of the Criminal Law) does not directly arise. This makes the author think that if the husband who is separated from his wife and is sleeping in the next room hears that the gangster is raping his legal wife and refuses to help him, does this constitute a crime of rape? If the police refuse to help a victim who is being robbed when he hears her cry for help, does that constitute robbery? What about killing someone who calls for help, does that constitute homicide? Does calling for help constitute the crime of rape? etc. In the absence of rape conspiracy, it may not be justified to say that the husband committed rape by inaction, so it would be more appropriate to convict him of the crime of abandonment. If the police do not rescue someone, then it will constitute a crime accordingly. I am afraid it is not appropriate, and the punishment may be too severe. Some people say that when the police fail to act, such as credulously believing that a strong female victim can bravely defeat the rapist constitutes the crime of dereliction of duty, and deliberately failing to rescue the victim constitutes the crime of abuse of power. But the problem is that our authoritative textbooks believe that the objective behavior of the crime of abuse of power only includes two situations. First, the perpetrator illegally exercises the power within the scope of his duties without following the authority and procedures stipulated by the law; second, the perpetrator Exceeding their authority to commit some act that is harmful to society. Since the police did not actively use their powers, it seems difficult to convict them of abuse of power. Isn’t it okay to criminalize dereliction of duty? The aforementioned textbook also believes that the subjective aspect of the crime of dereliction of duty is limited to negligence. It seems that this is another legislative omission.

Our country's new criminal law stipulates dozens of crimes of intentional inaction, such as indulgence in smuggling and indulgence in the production and sale of counterfeit and shoddy goods, but does not provide for the blanket crime of intentional inaction. Or, legislators think that the two charges of abuse of power and dereliction of duty can be dealt with. That again becomes a question of interpretation. Literally understood, the interpretation of these two crimes by the mainstream views in our academic circles seems reasonable. However, the above-mentioned dereliction of duty by intentional omission is necessary to be punished anyway. If not punished, it will obviously violate the legal feelings of ordinary people.

Referring to relevant foreign regulations, it can be found that Russia’s authoritative agencies interpret the objective manifestations of the crime of abuse of power in Article 285 of its Penal Code to include intentional inaction. Article 336 of the German Penal Code provides for the crime of failure to perform official duties. Article 328 of the Italian Penal Code provides for the crime of omission as an act of refusal of duty. etc. It seems that in foreign countries, there are basically clear provisions on the crime of dereliction of duty due to intentional inaction by state public officials. What about our country? The author thinks it is a question of interpretation. Some domestic scholars also believe that objective manifestations of abuse of power include intentional failure to perform duties that should be performed, or arbitrary abandonment of duties. The author thinks this explanation is very insightful, so I fully agree with it. Therefore, it is believed that if police and other public officials abandon their duties and intentionally fail to act, if they meet other constituent elements of the general crime of abuse of power or the crime of special abuse of power, they should be punished as such.

3. Simple summary

The crime of omission has been discussed for hundreds of years. In modern times, we still discuss whether punishing the crime of omission violates the principle of legal punishment and the Issues such as causality obviously have little practical significance. On the contrary, we should combine the trend of modern society to expand the criminalization of omission crimes, the scope of the obligation of omission crimes, the crime of omission and euthanasia, the unfinished form of the crime of omission, the conditions for establishing the crime of omission, and the transition from negligent conduct to intentional omission. The transformation of actions, such as in-depth discussions of actual cases like Song Fuxiang, are the urgent issues that reality has raised for us.