Laiminlyönti avunantona
Avainsanat:
rikosoikeus, avunanto, osallisuus rikokseen, laiminlyönti, epävarsinainen laiminlyöntirikosAbstrakti
Lakimies-aikakauskirjan nuorten kirjoittajien palkinto 2015
Aiding and abetting by omission
The article examines the special requirements set for the actus reus of aiding and abetting by omission and how these requirements affect the distinction between aiding and abetting and principal liability in the Finnish doctrine of complicity. In the preparatory works of Finnish criminal law, aiding and abetting by omission is connected to the concept of commission by omission. According to the preparatory works, if an omission is comparable to active furthering of the principal’s crime, it can fulfil the actus reus requirement of aiding and abetting. But if the would-be abettor is bound by a duty to act to prevent a consequence from happening, the non-performance of the duty leads directly to principal liability.
The author argues that the concept of commission by omission is problematic both in terms of criminal law theory and the principle of legality. Therefore it should not be applied to aiding and abetting. Instead, the concept of a duty to act is essential in defining the actus reus of aiding and abetting by omission. The author claims that only the non-performance of a duty which the offender is bound by justifies aiding and abetting by omission. Therefore, in omission liability the distinction between aiding and abetting and principal liability can only be made based on the nature of the duty the offender has failed to perform.
Since the preparatory works do not seem to allow for the distinction to be made based on the nature of the violated duty, the non-performance of a duty leads automatically to principal liability in most cases. The result is that the possibility of aiding and abetting by omission is limited to very few cases in the Finnish doctrine of complicity.
