Academic journal article Canadian Social Science

On the Difference between Omission Criminal Made and Accomplice/LA DISTINCTION ENTRE UN OFFENSEUR PRINCIPAL ET UN COMPLICE D'INACTION

Academic journal article Canadian Social Science

On the Difference between Omission Criminal Made and Accomplice/LA DISTINCTION ENTRE UN OFFENSEUR PRINCIPAL ET UN COMPLICE D'INACTION

Article excerpt

Abstract: There has been formed many viewpoints in criminal law world regarding the issue of how to distinguish omission criminal made and accomplice; in general, however, they can be classified into three categories of principle criminal made theory, principle accomplice theory, and compromise theory. Although these three types of viewpoints have both advantages and drawbacks as well; on the whole, they are unable to propose satisfactory answers on how to differentiate omission criminal made and accomplice. In view of this, author, with the hope to settle this issue, present his unique opinion from Pflichtdelikt and dominated committed perspective.

Keywords: omission; criminal made; accomplice; dominated committed; Pflichtdelikt

Résumé: Afin de faire la question de différenciation avec le complice d'inaction, des cercles de loi de châtiments ont formé un grand nombre de vues à ce sujet. Mais on peut diviser ces vues en trois catégories: le principe qui fait, le principe qui permet de faire et le principe qui compromet. Ces trois types de vue ont leurs avantages et leurs défauts. Pourtant, ces trois types de vue ne peuvent pas donner une réponse satisfaisante pour distinguer le complice d'inaction. Pour cette raison, dans l'espoir de résoudre ce problème, je voudrais faire l'introduction, l'évaluation et l'analyse de ces trois types de vues, et proposer mon propre point de vue de faire et de contrôler l'angle qui est fait volontairement.

Mots-clés: omission, criminel, complice, devoir délit commis dominé

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It is a major issue of how to differentiate omission criminal made and accomplice in joint crime. The difference between omission criminal made and accomplice had turned into a new subject in the theory at that time ever since Professor Armin Kaufmann published the monograph on omission criminal. There have been plenty of established viewpoints regarding the issue of distinguishing omission criminal made and accomplice in criminal law world that can been generally classified into three types: principle criminal made theory, principle accomplice theory, and compromise theory. This article aims at proposing my unique opinions to settle this issue based on introducing and reviewing these three types of viewpoints.

1. PRINCIPLE CRIMINAL MADE THEORY

This theory believes that although in physical sense omission means "non"; omission is based on the fact that nonactor could prevent harmful consequence from occurring but failed to do it, and the particularity of this act determines that omission in principle can only be criminal made. Armin Kaufmann and Welzel typically represented those who hold this view.

Based on purposive act theory, Armin Kaufmann believed that omission doesn't have causal force, can't change outside world, and can't become the reason to cause the consequence either; it is therefore totally impossible to simulate the act of actor, the crime of either assisting or instigating omission or through assisting or instigating omission doesn't exist.2 Otherwise it is inappropriate to define nonactor as accomplice when there is crime of act from others get involved between nonactor and consequence while as criminal made when there are natural forces and animals get involved.3 Welzel shared same view with Armin Kaufmann. He believed that "the reason that guarantor didn't prevent the infringement against the legal interests under his/her protection is not because of the already- imposed punishment against assistance of omission to killing, but because of omission criminal made (killing of omission)"; since he owns both capability to stop killer's act and ultimate crime domination."4 And this opinion has been criticized by many scholars, just as Utida Humiaki pointed out, now that it has been considered that omission is not act; then, based on the legal proverb of "No act, no crime", why it considers "Omission" that is not act as crime? …

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