论不纯正的不作为及其先前行为

犯罪不仅可由作为构成,也可以由不作为构成。不作为犯有两种类型:一种是刑法明文规定的纯正不作为犯,一种是不纯正不作为犯。前者的处罚依据是刑法各条之规定,而后者并未在刑法各条中有明示规定,对其进行处罚,似乎有背罪刑法定,但通过理论的分析,处罚不纯正的不作为犯并不违背罪刑法定。但因其未明确规定在刑法各条中,故处罚此类行为时,必须慎重,特别是认定其中的先前行为时,更应加以分类,从不同角度寻找处罚的依据。

Discussion on Untrue Omission and Previous Act

Crime can be committed by not only act but also omission.Omission is distinguished into two types:true omission that is stated by criminal law,and untrue omission.The former is punished according to the criminal law,but the later can't be found in the criminal law,so it seems to be against the rule of ascertaining crime and punishing it by statute law to punish it.But after analysis of the criminal theory,we know that it is not against the rule.For the reason of uncertainty in criminal law,we must take care when we deal with the untrue omission,especially the previous act which it should be classified and seek different gist from different sides.