On The Theoretical Issues Of Crime Of Dereliction Of Duty

The Crime of Dereliction of Duty refers to an act that any functionary of a state organ who abuses his power or neglects his duty, thus causing heavy losses to public money or property or the interests of the State and the people. In view of the serious consequence caused by the Dereliction of Duty in real life, it has been paid more attentions than before at the legislative level. However, there are still many difficult and complicated issues when dealing with the Crime of Dereliction of Duty. For example, the criminals, the damage, the causality, the subjective fault, the former case, the common crime and the numbers of Crime of Dereliction of Duty, all of which highlighted the importance of my research.Based on the carefully exploration on the current domestic legislation and jurisdiction of Crime of Dereliction of Duty, this paper focuses on the basic theoretical issues of Crime of Dereliction of Duty through comprehensive analyzing and systematic discussing. The author anticipates that it will contribute to the judicial practice in case of Crime of Dereliction of Duty and improve the theoretical level of Crime of Dereliction of Duty. The paper has seven Chapters except Introduction.The Introduction introduces the backgrounds of research, the legislative history of Crime of Dereliction of Duty in domestic and international criminal law. In view of the research reality of Crime of Dereliction of Duty, it is still kept in the lower level, and there are many theoretical problems not to be solved.The First Chapter discusses the legal entity of Crime of Dereliction of Duty. In this part, the author introduces the legislative transformation of legal entity of Crime of Dereliction of Duty, and the defects in the regulation of entity, and the criteria how to differentiate the entity. Furthermore, the author deeply demonstrates the two elements to discern the entity, which are "identity" and "official duty". And the author points out how to define "state organs" in china. She emphasizes that all the party committees of CPC and all the CPPCC should be considered as state organs. As a summary, the author lists out all kinds of entity of Crime of Dereliction of Duty that should be treated as the functionary.The Second Chapter elaborates the damage of Crime of Dereliction of Duty. In this part, the author describes how to define the damage of Crime of Dereliction of Duty and shows the definition and characteristics of it. And the author specifically mentions how to discriminate debt losses and stock right losses, as well as the start and end time that calculates the losses. Therefore, she focuses on the five forms of the non-material damage of Crime of Dereliction of Duty. These five forms include:1. serious damage of the reputation of state;2. severe harm of the public safety;3. severe destroy of social and economic order;4. critical damage of people's interests;5. acute impair of social management order. The author also believes that multiple derelictions of duty which are below the standard of the crime shouldn't calculate accumulatively.The Third Chapter focuses the causality of Crime of Dereliction of Duty. In this part, the author presents various theories about causality in civil law and common Law, and analyzes the domestic various views on the causality of Crime of Dereliction of Duty. And the author suggests that "double gradation theory" is a good way to discriminate the causality, which will divide it into two different parts:the virtual causality and the legal causality. There are three pieces of principles to discriminate the causality:1. It cannot go beyond the public's empirical expectations;2. It cannot go against the basic spirit of law;3. It should fully consider the modesty of criminal law. The methods to identify the virtual causality are such as:1. damage of Crime of Dereliction of Duty exists;2. the behaviors of Crime of Dereliction of Duty exist;3. behaviors as a condition to result the damage. The methods to discriminate the legal causality are such as:1. referencing some rational factors, which come from the objective imputation theory, as the guideline;2. getting help from the Concept of interests balance to assign the duty.The Forth Chapter explores the subjective fault of Crime of Dereliction of Duty. According to the offence form, Crime of Dereliction of Duty is divided into two types, and the one is type of dereliction, the other is type of abuse power. The subjective fault of dereliction is only negligence, which includes carelessness and overconfidence; the subjective fault of abuse power is intentional, which includes direct intention and indirect intention, most of which is indirect intention. The reason to punish negligent supervision in case of Crime of Dereliction of Duty is that the supervisors did not fulfill their duty because they did not predict the high-risk while they should do. If an officer who is granted the supervise duty should bear the criminal liability, his/her subjective fault should consider the negligence of the duty, which can be identify by two levels----SHOULD or CAN. The principle of trust also can be applied.The Fifth Chapter discusses the former case of Crime of Dereliction of Duty. Some cases of Crime of Dereliction of Duty are based on the former cases. It includes five charges:1. Crime of bending the law for selfish ends or twisting the law for a favor;2. Crime of subjects to investigation for criminal responsibility a person he knows to be innocent or intentionally protects from investigation for criminal responsibility a person he knows to be guilty or, intentionally running counter to the facts and law, twists the law when rendering judgments or orders;3. Crime of giving free rein to smuggling;4. Crime of indulge manufacture and sale of fake and shoddy goods;5. Crime of helping criminals escape punishment. There are three types of nature of former case:1. the former case is neither a crime nor a violation;2. the former case is regular violation;3. the former case is criminal indeed. In light of the third type, some scholars insist that it is not a crime, but the author always thinks that it had been a crime in essence. As for the standards to define the former case as crime, the author puts forward a new theory----Evidence Theory, according to this theory, it is enough as long as there are some evidence to prove the guilty facts in the former case, while the judgment or other judicial procedure is unnecessary. The author also thoroughly analyzes the five specific former cases of the Crime of Dereliction of Duty, and demonstrates the necessity and feasibility to amalgamate the jurisdiction of the former case and the Crime of Dereliction of Duty by the prosecutors. In the end of this chapter the author gives some specific methods to perfect the law of amalgamate jurisdiction.The Sixth Chapter introduces the accomplice in the Crime of Dereliction of Duty. It is should be divided into two aspects how to determine the nature of each criminal's accusation in the relationship of every symbiotic charge. The one aspect is that the accused whose duty is connected with public affairs should be charged the Crime of Dereliction of Duty in principle, while accusation of related accomplice is more severe they should be charged as related crime. The other aspect is that the accused whose duty is not connected with public affairs cannot be charged the Crime of Dereliction of Duty. As to the effect of the non identity of accomplice in the Crime of Dereliction of Duty, the author thinks that the accused whose duty is not connected with public affairs cannot be considered as prime culprit, but if he/she was considered as an abettor in the co-felony crime they will become prime culprits. The next question is whether the identity crime can be charged as an accessory in the co-felony crime? The author presents that the identity crime can only be charged as the principal culprits in any case. Furthermore, whether the sentencing of the identity crime could be slightly lighter than the non identity? The author holds the opinion that both of the identity and the non identify should be charged as principal offenders when they have played a major role and the non identify has played much more than the identity crime. Therefore, it can be accepted the sentencing is slightly heavier than the non identify crime, and the non identify crime can be sued as unilateral accomplice, not a unilateral abettor or a unilateral principal offender.The Seventh Chapter is upon the numbers of crimes of the Crime of Dereliction of Duty. It has been provided that the functionary who committed both Crime of Dereliction of Duty and Crime of Acceptance of Bribes should be charged with two crimes in the judicial interpretation, except the criminal law has different stipulation. The author will demonstrate the rationality in the perspective of the judgment criteria of crime's numbers and the judgment principle of crime's numbers. Additionally, the author proposes that the implicated offense should be abolished, and the incorporate crime that meets the conditions should be brought in. Otherwise, they should be charged as several offences.