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不作为犯的成立以行为人负有实施某种特定行为的法律义务为前提,真正不作为犯的作为义务来源,因为在刑法条文中都有明文规定,因此不存在问题;但与之相反,不真正不作为犯的义务来源,在刑法中并未明文规定,但仍将其作为符合作为犯的犯罪构成要件的犯罪来处理,因此其与罪刑法定原则的“相悖”备受学者诟病,学界对此问题的论述也较多,而作为义务来源在不真正不作为犯之成立条件中的地位、作用及其范围则争议较大,本文拟对这些问题做一探讨,以期有所明晰。
On the premise of the perpetrator’s legal obligation to commit a particular act, the establishment of a non-criminal is the source of his obligation as a true non-criminal because there are express provisions in the criminal law provisions, so there is no problem. On the contrary, The source of the obligation not to act as a crime is not defined in the criminal law, but it is still dealt with as a crime in conformity with the constitutional requirements of the criminal as a crime, therefore it has been criticized by scholars for its incompatibility with the principle of legality , The academic circles also have more arguments on this issue, and the position, role and scope of the obligation as the source of obligation in the conditions of establishment of non-abusive crimes are much controversial. This paper intends to discuss these issues in order to make it clear .