Abstract: Since it was systematically introduced to China more than ten years ago, the theory of duty offence has undergone certain new developments in both Germany and China. In Germany, the main manifestation of these developments lies in its increasingly clear normativeness; in China, the manifestation lies in its gradual penetration into the various fields in the general theory of criminal law such as the doctrine of omission, the doctrine of status-based crime and the doctrine of perpetrator, and emerging offences such as cybercrime, financial crime and unitary crime in the specific provisions of the criminal law. The normative basis for the theory of duty offence lies in the violation of positive duty based on institutional governance, rather than in the various theories of domination; the connotations of institutional governance and positive duty may be further refined in a more jurisprudentially grounded manner, and the introduction of sociological examination, parentalism, and the perspective of ‘citizen's unlawfuness’ helps to further clarify its normative basis. The functional nature of the duty offence makes it more useful in modern society, but the society itself determines whether an offence is a duty offence, and the theory of the duty offence only has the interpretative function rather than the constructing function; the positive duty is somehow in tension with the space of freedom of citizens, and criminal law can be used to guarantee the fulfillment of the positive duty to the least extent necessary and in accordance with the principle of the last resort. The theory of duty offence has its solid normative basis, which can hardly be genuinely challenged, as well as its relatively clear functional boundaries, which cannot be crossed.
Keywords: Duty Offence; Positive Duty; Institutional Governance; Domination; Functionalism
Author: He Qingren, research fellow, CASS Institute of Law; Professor and doctoral supervisor, Law School of the University of CASS;
Source: 2 (2026) Political Science and Law.
