Summary

Rules of law may be classified into rules imposing obligations and those imposing prohibition. A violation of a prohibitive rule means that something that should not be done is done. Inaction as a delict involves non-performance of a rule of law imposing an obligation, or a failure to do something, which brings about a punishment. Although the theory and practice of the Estonian criminal law do not negate the existence of the delict of inaction, much of its content has been forgotten. Several criminal cases which have recently attracted an extensive coverage by the media have shown the topicality of the issue and the need to address it in more detail.
In order to define the delict of inaction, the author explains how to differentiate between inaction and action, which may prove more difficult in cases where action and inaction are interwoven. Based on several examples, the author shows how to solve complicated situations relying on various theories. Also, the author dwells on the differences between genuine and non-genuine delicts of inaction and on the different forms of liability prescribed therefor. Although the concept of guarantor is not common in the theory of Estonian criminal law, the author examines the nature and substance of guarantor as an essential element connected with the non-genuine delict of inaction, as well as different types of the guarantor’s obligation, based on several examples. As the nature of the delict of inaction becomes particularly clear in the issue concerning causal link, the author explains ways of establishing a hypothetical causal link between inaction and action. Also, the author examines issues concerning presumption of required action and the subjective elements of the delict of inaction which in practice have caused much discussion.