Study On Subject Of Duty Crime Under The Background Of The Reform For National Supervisory

As the important concept of the regulation of public power of the criminal law and the supervision law,the duty crime subject is the epistemological basis for achieving the goal of reforming the national supervision system that covers all subjects exercising public power supervision.It is not only the special criminal subject in the sense of crime constitution,but also subject of crime constituted by unauthorized exercise of public power or influencing of public power.It covers all actors who are qualified to exercise public power,including the national staff,non-national staff,and public officials as well as any other actors qualified to exercise public power.In short,the essence of duty crime subject is the exercise of public power.Accordingly,this article proposes a "unified power paradigm" interdisciplinary research method and a "system-organization-purpose" power analysis framework,in order to explore delimiting a crime circle scientifically and rationally in the field of duty crime subject.In the unified power paradigm,public power is the power that granted by the legal system to the state,state-owned companies/enterprises and social organizations to manage public affairs.According to the "system-organization" and "organization-purpose" two-tier distinction criteria,the public power can be divided into three types,namely,the state power,the economic power and the social power,those are,the powers granted by the legal system to state organizations,profit-making public organizations and non-profit public organizations respectively.Based on this,,the article analyzes the historical evolution and legislative models of these three types of public power duty crime subject regulation,and reconstructs the identification standard and the legal boundaries of that from the perspective of legal interpretation and legislative improvement,in accordance with the legal policy objective to achieve the full coverage of supervision.Among the subjects of public crimes of state power,it is basically the same regulation between the criminal law and the supervision law.Using substantive interpretation can make public officials who exercise public power of the state correspond to the state staff of state organs.The basis of the substantive interpretation of the subject of duty crime,the identification standard,needs to be developed from "public affairs theory" to "power theory".That is,to define the subject of crime in the criminal law and the supervision law in a unified manner based on whether it has the qualification to exercise the public power granted by the law.The power theory is a unified theory applicable to the relevant laws regulating national staff and public officials.And the elements of the regulations,such as organization's identity,public service,management,and public performance,are the manifestations of public power on different types of crime subjects.Among the subjects of public power crimes of economic power,there are differences between the regulation of the criminal law and that of the supervision law.They are mainly concentrated on the crimes of malfeasance in enterprises and the crime of corruption in state-owned companies.According to the power theory,the subject of public power crime of economic power is the personnel who exercises the power to supervise state-owned assets in state-owned companies and enterprises according to law.Based to this,the “state-owned company and enterprise” in the criminal law is restrictively interpreted as wholly state-owned company and enterprise,the “personnel in state-owned company and enterprise” is expansively interpreted as staff assigned by state company and enterprise to non-state-owned company and enterprise,and “performing public affairs” is interpreted as the exercise of state-owned assets supervision power.In the supervision Law,the state-owned enterprise is expansively interpreted as wholly state-owned enterprise and state-owned proprietary company,and administrator is interpreted as personnel supervising state-owned asset.Among the subjects of public power crimes of social power,there are considerable contradictions in the regulation of the criminal law and that of the supervision law.They are mainly concentrated on grassroots autonomous organizations and private social organizations.The power granted by law to grassroots autonomous organizations,public and private social organizations to perform public affairs,public management and public services shall be recognized as public power.The Criminal Law and the Supervision Law should abandon the narrow standard to identify the public and private nature of the power of social organizations in terms of ownership,and enact the judicial interpretation or legislative amendments to regulate the personnel in grassroots autonomous organizations and private social organizations state staff as well as public officials.According to the duty crime subject theory reconstructed by the unified power paradigm,this research integrates and develops the researches in the fields of the criminal law,the supervision law and the legal policy to duty crime subjects,such as state staff,non-state staff and public officials,and also proposes a unified identification standard for duty crime subjects based on the power theory.By doing these,different types of duty crime subjects have been defined and applied in accordance with the nature of the powers granted,and connection between the regulation of duty crime subjects in the criminal law and that in the supervision law has been built.The goal of this article is to provide a specific and practical guidance in theory to achieve reforming the national supervision system.