On Status Crime

This dissertation, taking the definition of two key concepts, i.e. the criminal status and the status crime as a starting point, expounds the status crime. Next is the observation and comment on the major history of the status crime as well as the exposition of issues including the theoretical basis for the status crime, a study of the positivist issue of the status crime, and the should-be legislation on the status crime. Detailed elaborations are as follows:Chapter one mainly introduces the concept of the criminal status as well as that of the status crime, types of the status crime and its features. It also lays emphasis on defining the pure status crime and non-pure status crime as well as their manifestation in the criminal law in our country, with crimes including embezzlement, encroachment on service, purchase of counterfeit money by financial workers falling into the category of the non-pure status crime. Chapter two observes the history of the development in the status crime including a variety of manifestations of the status crime in the law in ancient society on the basis of the unequal principle as well as outlines the manifestations of the status crime in the criminal law in modern and contemporary societies on the basis of the equal principle to reveal the difference in ancient and modern and contemporary societies in terms of the status crime as well as to analyze the accelerating effect of the idea of equality and democracy on the legislation on the status crime in modern and contemporary societies. Then the basic theoretical issues of the status crime is expounded and proved. First the relationship between status and equality and then that between status and equal duties is elaborated. On this basis, the essence of the status crime in modern times is further analyzed, i.e. the essence of the pure status crime lies in the violation of specific duties perpetuated by the actor whereas the non-pure status crime in the phenomenon that the actor is entitled to be punished on the lenient side provided by the law or is liable for severe punishment. The aforementioned three chapters mainly expound the status crime from the perspective of concept, history and theoretical basis.Chapter four and Chapter five mainly expound the merger of the status crime and joint offence from the perspective of judicial practice and what should be done. Chapter Four mainly deals with how the status crime should be condemned under the circumstance of the merger of legal provisions as well as with the status crime and other type of crime and with the differentiation of individual crimes. Views including that the status crime shall be condemned and punished according to the accusation of the status crime under the circumstance of the merger of legal provisions and that rape shall not fall into the category of the status crime are emphasized. Chapter Five mainly expounds the major dispute in terms of the status crime in judicial practice, i.e. the joint offence of the status crime. In this chapter the author analyzes the issue from a should-be point of view and under the principle of Nulla peona sine lege, that of taking sole responsibility for an offence, and that of modesty and restraint of the criminal law whether a statusless person can constitute a joint offender in a pure status crime, the issue of the condemnation and measurement of penalty against a statusless person and a joint offender in a non-pure status crime, and that of the joint offence of persons with different status. The author proposes a principle in terms of the condemnation and measurement of penalty contrary to the traditional joint offence of the status crime– a statusless person cannot be treated as a joint offender in a pure status crime. Moreover, the joint offence consisting of statusless persons and non-pure status offenders and that of persons with different status should be condemned and punished respectively. The author aims at providing a new perspective in terms of the review about the scientificalness of the relevant judicial interpretation as well as the numerous disputes in the schools of theory and advocating that while using the experience of countries adopting the continental law system in terms of the principle of condemnation and measurement of penalty against the status crime, the provision of the criminal law in China should not be divorced from whereas the existing difference in concrete provisions between the criminal law in China and that in the continental law system countries be seen in that one should not only see the integration of forms in terms of the condemnation while neglecting the difference in essence in terms of the measurement of penalty respectively. The author maintains that in terms of the joint offence of the status crime, with the exception of specific legal provisions, the respective condemnation be of the most rationality.The closing section, i.e. Chapter Six is a proposal for the legislative perfection of the status crime from the should-be point of view, mainly focusing on the prospects for the legislative thinking, style, and method of the status crime as well as for the amendment to the criminal constitution of concrete crimes. In terms of the legislative thinking, the author puts forward the opinion that criminal status equality is nothing but comparative equality. In addition, the service crime, especially the public service crime, should be punished severely while the principle of having commiseration on the old and the young should be reflected. In terms of the legislative style, the author suggests that the legislation on the status crime consult the method of specific stipulation in the general provisions adopted by continental law system countries including Germany and Italy, and vigorously advocates that the principle of condemning the crimes respectively should be the best. In terms of the legislative method, the author thinks that the legislation on the status crime should reflect the reduction principle. Especially the legislation on the non-pure status crime should draw the experience of the existing criminal law, e.g. the method of legislation on the crime of illegal constraint. In terms of the amendment to the constitution of concrete crimes, the author suggests that the crime of encroachment on service merge with the crime of corruption, the acceptance of bribes with the bribery perpetuated by non-public servants along with the corresponding offence of bribery, the crime of petulation and that of the misappropriation of funds with that of the misappropriation of specific funds and goods. Moreover, the reflection of family, blood, and moral relations in the status crime should be perfected; the mutual harbouring, covering up and theft of close relatives should be de-criminalized; the homicide and injury of elders should be given a severe punishment; the rape of the person with blood, educational and guardian relations should be given a severe or aggravated punishment.To summarize, the author thinks that under the principle of Nulla peona sine lege, that of taking sole responsibility for an offence, and that of modesty and restraint of the criminal law, we should review in a rational way the existing legislative omission in terms of the status crime in our country and make an in-depth examination of the chaotic situation in terms of the status crime in the judicial practice as well as in its condemnation and measurement of penalty against the joint offence in our country. The author further advocates that when we draw lessons from the successful experience and practice abroad, we should incorporate scientific provisions concerning the status crime in our history and perfect the stipulation on the status crime and its joint offence in our country. The author insists that the condemnation and measurement of penalty against joint offenders respectively mostly confirms to the principle of taking sole responsibility for an offence. In the course of the amendment to the criminal law in the future, even if the statusless person is treated as a joint offender in a pure status crime, the rationality in terms of the measurement of penalty should be reflected.