| Criminal omissions in China, although occasionally applied improperly, should not be regarded as "over-criminalization". This paper attempts to analyze the development trend of commission by omission crime and investigate its scope in two dimensions, i.e., the kind of commission crime that should include omission, and the identification of Garantenstellung (subject of legal duties). In China, the Criminal Law does not provide for commission by omission crime in its General Provisions, but contains a large number of omission crimes in its Specific Provisions. Besides, judges are prone to impose a lesser or mitigated punishment on commission by omission crime, which is more suitable for meeting increasing challenges of criminal justice in postmodern society. In light of the above fact, China should restrict the application of commission by omission to only some crimes, while adopting a relatively relaxed attitude towards the identification of Garantenstellung. Based on the fact that commission by omission crime is complementary to omission crime, commission by omission should be applied to crimes without these features, i.e., crimes against important individual legal interests. In identifying Garantenstellung, the theory of Herrschaft über den Grund des Erfolges (control over the ground of the infringement of legal interest) is more reasonable in comparison to other relevant theories. Ingerenz (creation of peril), which differs from other types of Garantenstellung, should be justified by criminal policy, rather than the theory of Herrschaft über den Grund des Erfolges. In view of this, Ingerenz should be placed in the second layer of the system of legal duties, hence, be treated differently from other duties in criminal judicial practice. |
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