Research On The Legislation Of The Abuse Of Authority In Crimes Of Dereliction Of Duty

The Abuse of Authority in crimes of dereliction of duty is a new class of crimes in Criminal Law of 1997. As a class of crimes, its concept has abundant meanings, and it includes general abuse of authority crime and specific abuse of authority crimes, in total 24 crimes. In previous theoretical research of criminal law, the Abuse of Authority in crimes of dereliction of duty has only been regarded as a term for systematical description of certain crimes, but rarely as a class of crimes. The reason is simple. It is because in conventional theories of criminal law in China the research has often been developed from a criminal structure analyze perspective. In that case, criminal law study can expound the theoretical problems of the Abuse of Authority crimes just towards the crimes themselves, and thus it is not necessary to study into the class of crimes. However, it turns out that in real life this crime analyze is becoming limited. On the one hand, the extreme narrowness of the way of thinking leads relevant theoretical problems, such as the study of the subjective forms of the abuse of authority crimes (see below in detail), into a dead end; on the other hand, the study of theories has gone farther and farther away from the real life, and the theories and the real life cannot perfectly develop a mutualism. The law is the logos of the practice, thus the study of law should also be conducted for the purpose of solving practical problems. As a result, the author holds that the perspective of conventional criminal law study should be changed, and the value of theories of abuse of authority in crimes of dereliction of duty shall be dredged up from different perspectives. Among different aspects, the authors believes that it is a advisable way to study the deficiencies in the provisions of the Criminal Law from a legislative perspective and to scientifically restructure the law following systematical theories.The legislation is always for some purpose, and during the course of legislation the legislators should thoroughly consider whether the presumed legal effect could be obtained in the functioning of the laws they worked out, for which purpose the course of legislation should be scientifically hold. According to the theory of the delegate of the classic Natural Law Genre, Montesquieu, the legislators should be holding a"merciful"attitude towards the purpose, the effect and the background of legislation, for the laws on the surface of which might be on the contrary of the purposes of the legislators would actually often be in accordance with these purposes; similar laws do not always have same effects, or comes from same motives either; and seemingly contrary laws sometimes comes from the same legislative purpose, while seemingly similar laws sometimes would turn out to be quite different. Thus,"Do not amend the law, if there is not enough reasons."The above points of views describes a scientific attitude towards legislation, and reveals the relationship between the purpose, effect and science of legislation. It is not enough to have only a legislative purpose which fits the need of practice, but also scientific attitude of allowance and objectiveness, soundly structured operation, and thoughtful and precise expression. Only in this way, the law legislated can finally be effective in judicial practice, and the purpose of legislation be realized, otherwise the result would be quite the contrary. The value pursuit of the principle and technique here is the basic meaning of scientific legislation. Moreover, according to the jurisdiction principles of Marxism, as the national basic law, the Criminal Law is in keen relevance with material interests of the nation, the society and the citizens, and the legislation and amendments of it should undoubtedly be restricted by the economic, social and cultural factors of the nation, and also be influenced by the legal tradition and social legal developing current. Responsible legislators couldn't and didn't create the Criminal Law following their own inclinations, and the legislators have to seek, summarize and follow the objective rule of the fighting against crimes, to soundly treat the crimes, and to pursue the science, reason, and practical of legislation.In judicial practice, a lot of issues of Abuse of Authority in crimes of dereliction of duties have been brought forward, and most of these issues are directly related to the scientific legislation. These issues are: (A) From the quantity of the Abuse of Authority crimes committed, this type of crime dose not be effectively controlled. According to statistics, after the enactment of the new Criminal Code, 000000 have been a rising trend year by year, in recent years, The average annual number of this crime accounted nearly half of the total number of Abuse of Authority Crime. The results show that from the year 1998 to 2003, the national prosecution have handeled the cases of Crimes of Dereliction of Duty to a total of 42,787,and the number of Abuse of Authority Crime has been 9169 in total, accounting for 21.4% of the total number of file, with an average annual incidence for 1528. However, today, the latest figures show that the proportion has shown an upward trend. It is learned that from January 2003 to March 2007, procuratorial organs throughout the country put on record and judge 29,351 cases of Crimes of Dereliction of Duty, and the number of Abuse of Authority Crime has been 8247 in total, accounting for 29% of the total number of file, with an average annual incidence for 2061. (B) For the various types of cases, criminal penalties for the criminal rate is relatively low. For one thing Crimes of Dereliction of Duty in China show a upward trend, the serious harmful result, and the people reflect quite strongly. according to statistics of Supreme People's Procuratorate, one Crime of Dereliction of Duty worths an average of 285 yuan, which has not made consequences of major damage to the people's lives and health. For another, the rite of the Penalty punishment of Crimes of Dereliction of Duty is relatively low, and partial light sentence "and the vast majority of which was exempted from criminal punishment and probation. So that the referee function of criminal law have been made to lose. (C) The value of the criminal law regulating such crimes has not been widely recognized by the public. From the social point of view of public concern, the danger of Crimes of Dereliction of Duty is significantly lower than that of corruption, bribery and other job-related crimes, though it is much larger from the point of view of danger to the society. For example, it is reported that"what comes into being sharp contrast to the harm of Abuse of Authority is that much people forgive the crime of Crimes of Dereliction of Duty, and it is not enough fot the awareness overall to realize the big harm of this crime. The public, including some leading members donot care about these cases, the individual is also reluctant to support the prosecution. Many people are accustomed to using on stage of development, on the cost of the reform to evade; Someone thinks that Crimes of Dereliction of Duty can be understood that it is someone does something bad, but with goodwill. As a result, the referee function of criminal law have been made to lose, just because the value of the criminal law regulating such crimes has not been widely recognized by the public.(D) There are many viewpoints in the research of the theoretical in criminal law, and they can't reach agreement. Because of the lack of effective guidance of the theory of criminal law in legislation, the theoretical of constitution of a crime face the unprecedented challenges. There are a variety of perspectives and understand of the academic variety, each of which has its own insight but confronting positions, most of which focus the subjective elements of offense in Abuse of Authority Crime。On this issue, there intertwine a variety of perspectives of the criminal law theory that you can imagine, including Intention Direct Intention, Indirect Intention, Negligence, Intention and Negligence, Indirect Intention and Negligence, Compound Offense, up to 7 in total. In addition, is the criminal object single or complex, is the heavy loss consequential offen or punishment conditions,there exist a series of academic dispute that cannot reach agreement. The dispute of these theoretical point of view of from another angle, have reflected a number of issues in legislation that can not be ignored.The author believes that it can be proceed to the following aspects to analysis the questions above in Abuse of Authority Crime: First, an in-depth understanding of legislative target. It'srelated to legislative activity involving the scope of the object, if only the object of legislation on its own carry out an objective analysis of the law and understanding, the legislation can be made a specific reality. The Legislative object of Abuse of Authority Crime is the public power. As a result, the research of Abuse of Authority in legislation should pay attention to the phenomenon of the power and the abuse of power. Second, implement the idea of legislation firmly. Legislation embodies a value-oriented idea, it is closely related to a particular stage of social development. The scientific and effective legislation should be able to represent and reflect the country-specific public policy and the main social values of the people, The state upholds the uniformity and dignity of the socialist legal system. As the reflecting of the sprite of criminal legal system, principle of prescribed punishment for specified crime has also been written into the Criminal Code, it should be said that as long as the strict implementation of the principle of the principle, the scientific nature of the legislation can be effective security. But in real life, either criminal jurisdiction or criminal legislation did not do this, so it will make some problems. Third, regulating the legislative system according to law. The scientific system is an important scientific basis in scientific legislation. In the current law system, a number of legislative and institutional deficiencies have something with the system, such as the division of jurisdiction between criminal law and administrative law for the same offense (criminal), as well as the issue improving the constitutionality of the Criminal Law Review Mechanism, and the issue of the dual legal interpretation and arbitrary interpretation,and so on, and these are all the important part of scientific legislation. Fourth, improving the legislative technique. Legislation is not only a very complex system engineering, but also an art of language. In a sense, legislative technique has a role in the decision on scientific legislation. Legislative technique includes two parts, that are planning technique and creating technique of legislative structure. The former includes forecast legislation, legislation in areas such as the time to master, the latter mainly means the form of the substance and structure legal provisions, such as the use of words of legal language. Fifth, comparing the legislation. Legislative knowledge is an open system. Legislators should draw on a wide range of human society formed by all the advanced legislative experience and results, so that the legislative level can be greatly enhanced,in order to ensure that the law is more scientific and perfect. Abuse of Authority Crime is a traditional type of crime, most criminal law has such contents of regulating such crimes. And we should learn a lot, such as the concise of the legislative model, and the effectiveness of the criminal penalties and scientific legislative technique.The purpose to analyze the legislation is to consummate it and to restructure the legislation scientifically. As for the Abuse of Authority in crimes of dereliction of duties, the scientific restructuring of the legislation should be realized from both the inner side and the outside, and started from the perfection of the legislation theories and the legislation techniques. The first thing should be guiding the legislation with the principle of"crime and penalty should only be stipulated by law". In some deficiencies during the legislation of the Abuse of Authority in crimes of dereliction of duties, the absence and twist of the legislation theory and principle are the main causes, such as the over weighed pursuit of legal value of the criminal law as a tool and the function of it for protecting the public welfare and national interest, whereas the comparatively deficiency of the protection of the personal interests of the citizens; the accentuation on the judging criterion, whereas the overlooking of the mode criterion; the vacancy and ambiguity of the settings of the provisions; and the unbending legal explanation; all of which are in violation of the principle of"crime and penalty should only be stipulated by law". Accordingly, for the scientific legislation of Abuse of Authority of crimes of dereliction of duties, the first thing should be setting up the principle of"crime and penalty should only be stipulated by law"as the criminal law principle. At present, although this principle has been promulgated in the Criminal Law, the legislation of the Criminal Law hadn't carried it out thoroughly. Secondly, the legislative structure should be scientifically and soundly built up. The author holds that, for the legislation of the Abuse of Authority of crimes of dereliction of duties, the structure should be: firstly, the ranking should be heightened, which shows the recognition of the importance of the criminal regulation of the Abuse of Authority crimes; secondly, it should be split from the crime of neglect of duty,and the intentionality of the subjectivity of this class of crimes shall then be highlighted; thirdly, the prescription shall be simplified, and the provisions concerning the specific Abuse of Authority crimes shall be deleted; fourthly, the definition of the crime shall be clarified, and the subject shall be defined as national authority personnel, the subjectivity form as intentionality, object should be singled, and the objective aspect should exclude the material loss, the behavior mode should also be defined; fifthly, the title crime should be added.