刑法对不真正不作为犯的角色期待和价值判断离不开本土化的问题意识，仅仅从理论层面研究借鉴德日学术观点具有局限性。我国理论与实务长期缺乏互动探讨，教义学研究功能性定位缺失，难以深入和有效回应实务需求。实务对先行行为持广泛肯定的态度，但相关裁判理由主要还是基于四分说对先行行为从事实角度和条件关系上的理解，形式化的理论难以应对实务复杂的问题，在定性和量刑上存在因果关系认定含糊、归责路径不够明确以及未能充分重视故意过失的区分等问题，缺乏对作为义务的实质判断。应正视和尊重实践承认先行行为的处罚需求，且现代风险影响途径不确定，也给法益保护带来新的挑战，为应在一定程度上承认先行行为成为义务来源提供了契机，问题关键在于为承认该义务提供法理基础的支撑。但既有学说所采取的支配、信赖或期待概念，属于形成保证人地位之结论，并无法提供具有建构作用的法理基础。而且，基于不作为与结果的关系在犯罪支配寻找等价性面临困境，也混淆了义务根据基础与归责，二者应独立判断。应承认支配犯与义务犯两分，作为义务基础应着眼于规范性视角下社会中人与人间的关系。对法益保护具有特别地位的人通过义务违反的方式侵害了支配犯所保护的法益，与犯罪支配所侵害的法益等价，且这一特别地位根据在是在刑法之外的。先行行为事实上引起了法益处于结果的临近的危险，法益就可以被评价为规范地依存于该保证人。这是源于每个人处于社会连带关系中，无知之幕下理性人的协商所得出的最小利益最大化的结论。作为义务的有无无法决定行为的具体违法类型，也无法确定不履行义务能否就要被规范归责。不作为犯的成立包括了作为义务的等价性限定、法益危险的等价以及客观归责的规范限定。不是所有犯罪都可能由不作为构成，不成立保证人地位也足以保护法益的场合除外；作为犯与不作为犯所客观现实化的危险也应进行等价性衡量；此外，应从事实因果支配走向规范客观归责，重视分配责任的规范需要，将不具有义务违反性或超出规范保护目的、没有结果避免可能性、属于被害人或第三人答责领域的进行实质限定。通过层级的铺展，全面的限定，不作为犯的成立范围将更加准确和清晰。

The role expectation and value judgment of criminal law for non-typical omission cannot be separated from the problem consciousness of localization. There are limitations in doing research and using German and Japanese academic views for reference only at the theoretical level. There is a long-term lack of interactive discussion between theory and practice in China, and the lack of functional positioning of doctrinal research makes it difficult to deeply and effectively respond to practical needs. The practice holds a widely positive attitude towards the antecedent acts, but the relevant judgment reasons are mainly based on the quartering theory, which is understanding of the antecedent acts from the perspective of facts and conditional relations. Formalized theories are difficult to deal with the complex problems in practice. In terms of qualitative and sentencing, there are some problems, such as vague identification of causal relationship, unclear attribution path, and failure to pay full attention to the distinction between intentional and negligence at subjective aspects, and lack of substantive judgment on the obligation to act.We should face up to and respect the demand, which is to approve of the antecedent act and to punish it in practice. What’s more, the uncertainty of modern risk impact path also brings new challenges to the protection of legal interests, which provides an opportunity for the recognition of antecedent acts as the source of obligations to a certain extent. The key is to provide jurisprudential basis for the recognition of this obligation. However, the concepts of domination, reliance or expectation adopted by the established doctrine are conclusions that form the status of guarantor, which doesn’t provide a constructive jurisprudential basis. Based on the relationship between inaction and result, it is difficult to find the equivalence between act crime and omission crime in terms of criminal domination. It also confuses the basis of obligation and the attribution of responsibility, which should be judged independently.It should be recognized that the distinction between dominating crime and obligatory crime. As the basis of act-obligation, we should focus on the relationship between people in society from the normative perspective. The person who has a special status for the protection of legal interests infringes on the legal interests protected by the dominant crime by ways of obligation violation, which is equivalent to the legal interests infringed by the criminal domination. And this special status is based on the fact that it is outside the criminal law. In fact, when the antecedent act causes the danger of infringement about legal interests is close to the result, the legal interest can be evaluated as the normative dependence on the guarantor. This follows from the conclusion that the minimum benefit is maximised by the negotiation of rational persons under a curtain of ignorance, and each of whom is in the social solidarity.Whether there is an act-obligation or not cannot determine the specific illegal type of the act, nor can it be determined whether the non performance of the obligation can be imputed liability from the normative perspective.The establishment of the crime of omission includes the equivalency limitation around the act-obligation, the requirement of the equivalence of the danger of legal interests, and the restriction of the normative perspective of the establishment of the crime with the objective imputation theory. Not all crimes may be constituted by omission, except that a guarantor is not required and is sufficient to protect legal interests. The objective realistic danger of act crime and omission crime should also be measured by equivalence. In addition, we should move from the domination of factual cause and effect to the standardized objective attribution of responsibility, pay attention to the normative needs of the distribution of responsibility. And for restriction, substantively to exclude the liability for acts that are not in breach of obligations or beyond the purpose of normative protection, have no possibility of avoiding results, and belong to the field of victim or third-party responsibility.Through the spread of levels and comprehensive limitation, the establishment scope of omission crime will be more accurate and clearer.