THE CHALLENGES IN QUALIFYING THE CONDUCT IN CONCRETE CASES AS COMMISSION OR OMISSION

The harm that are occurred by active conduct may be also brought out by passive conduct, omission, of those who have legal duty to act. In some cases, these two forms of conduct exist simultaneously. This is the case where a mother leaves her newborn to a secluded place and the baby dies or the physician shuts off the reanimator and the patient dies. Both mother and physician have a legal duty to act and both performed the active conduct as well. In such cases, two forms of conduct are come into being and lead to death. Consequently, the question on which form of conduct criminal liability should be based upon arises. That is to say, mother or physician should be punished due to the killing by commission or omission remains debatable. For such cases, various criteria have been applied by the case law and doctrine of German criminal law. In this study, these are put across by classifying as “reality” and “assessment” theories. The main approach of this study is not only relying on reality for the solution; but after the retaining of the reality, it is necessary to make an assessment, which refers to the interpretation of norms. Because, in such cases, both forms of conduct stand at an equal distance to the norms. Starting from this point of view, the uniformity of conduct, the coexistence of recklessness crimes with omission, the relationship of the previous and the next action with the preexisting dangerous behavior and the crime of abandonment are discussed. All of our analysis has shown that a single criterion to be developed cannot solve the cases in which both forms of conduct occur, and that the solution can be put forward according to the background of the case. Because, each of these cases contains various issues of the crime theory. Only these issues remain in the background when two forms of conduct as commission and omission appears in the natural sense