Research On The Knotty Issues Of The Crime Of Abuse Of Power

When the Criminal Law was amended in 1997,according to the present situation of China's social and economic development,the legislators used the abuse of power by state organs to cause certain harmful consequences.They were separated from the crime of dereliction of duty and became guilty of independence,and the same law was imposed on dereliction of duty,that is the No.397 article of Criminal Law.Since then,the research and discussion on the crime of abuse of power in academic circles and judicial practice can be described as a hundred schools of thought and opinions.The theoretical differences have led to the application of confusion in judicial practice.Nowadays,the legislation on the crime of abuse of power has been more than 20 years old,the theoretical debate has not subsided,the scope of the subject of abuse of power,the form of crime,object behavior,special forms,legislation and other issues of the study,there is still not enough to serve the audience of the said.“Official Governance”has always been an important problem in governing the country.The crime of abuse of power is one of the important crimes in the field of duty crimes.It is of great significance to fight the crime of duty,to maintain the order and purity of the duty behavior,and to promote the construction of the socialist country ruled by law.However,the application of practice is inseparable from the guidance of theory.Based on the idea of providing a theoretical reference for judicial practice,the author will sort out and analyze each viewpoint as much as possible in this paper,and at the same time put forward some suggestions on the improvement of the legislation on the abuse of power.The introductory part of this article mainly explains the reason and significance of the topic.The crime of abuse of power as a new offence of the new criminal law shows that such crimes have a high incidence rate in the whole life of the society,and the harm is serious and the impact is bad.Criminal legislation has not only attacked and severely sanctioned these crimes through the form of new crimes,but also reflected the state's emphasis on penal adjustments for the duties of staff in keydepartments and key departments of state organs corresponding to such abuse of power.The introductory part not only points out the significance of the crime of abuse of power in judicial practice,but also points out its extensive debate in theory and practice because of the lack of legislation.The theoretical community's research on abuse of power can be described as a hundred schools of thought.Through in-depth study of various theories,the author focuses on the crime of abuse of power in five aspects: criminal subject,subjective crime,objective aspect,special form and legislative defects,and then out forward a feasible improvement suggestions.The first chapter first introduces the concept of the crime of abuse of power,and pointing out the judicial definition of the crime,that is,in the process of exercising the power,the state public workers deliberately violate relevant laws or regulations,or excessively exercise their powers,or there are non-compliance with relevant regulations,that cause significant losses to the public property,the state,and the interests of the people,or that are not within the above-mentioned scope,but cause serious adverse consequences.In addition,multiple classification criteria were used in the classification of the types of abuse of power.Then,the legislation on the crime of abuse of power abroad was investigated,and the legislative characteristics of the criminal law of abuse of power outside the domain were summarized.It briefly introduces the legislative evolution of the crime of abuse of power in China since the founding of the People's Republic of China.The second chapter focuses on the objective aspects of the crime of abuse of power.It is generally believed that the crime of abuse of power is the result of the crime,because it causes the “Major Loss” of the relevant parties to constitute the basic elements of this crime.However,some scholars have also suggested that different opinions suggest that the crime is a plot crime in essence,and that scholars have proposed an objective concept of exceeding factors,and that significant losses can be regarded as objective excess factors,but not as a result.Some scholars believe that the major loss factor should be included in the scope of objective factors,and the composition of crime is separate from each other,because this content is not included in the subjective consciousness of the perpetrator,and it is impossible to cause“Major Loss” through this element.The act of deliberate or deliberately makes an effective judgment,but merely indicates the quantity of the degree of violation of the law.What is the nature and status of major losses in the crime of abuse of power,not only the above-mentioned judgments on subjective crimes of abuse of power,but also the deliberate basic doctrine.The nature of the major losses must also be combined with the subjective crime of abuse of power.Come over.In addition,there are disagreements in judicial practice regarding the specific scope of major losses,the criteria for judging,and the timeliness of prosecution.The third chapter discusses the crime of abuse of power from the perspective of criminal subject research.This part is the focus of this article.As a special subject of crime,through the first part of the legislation,we can find that the legislative purpose of this crime is aimed at severely cracking down on the abuse of power by state organs.Then the accurate definition of the staff of the state organs becomes extremely important for this crime.However,the provisions of the criminal law do not clearly define what is the staff of the state organs,but simply mention that “ the public officials employed in state organs” belong to the state staff.What is the relationship between the two? Whether the former is equivalent to the staff of the state organs.After the revision of the criminal law in 1997,these two problems began to plague the judicial practitioners,and they were also controversial in the theory of criminal law.The first section of this chapter combs the provisions of the subject of abuse of power in the legislation;the second chapter discusses the problems of the subject of abuse of power;the third chapter analyzes the judicial determination of the crime of abuse of power.The fourth chapter studies the crime of abuse of power from the aspect of subjective sin.For the subjective sin of abuse of power,there are doctrines of single sin,compound sin and main sin.A single sin says that the sin of every specific crime stipulated in the crime of dereliction of duty is single,either intentional or negligent,that is,some sin can only be constituted by intention,and some can only be constituted by negligence and abuse of power can only be deliberately constituted.The compound sin said that from a subjective point of view,the actor's deliberate orignorance at work may lead to the crime of abuse of power.There is a certain difference between the views held by the main sin theory.The theory holds that negligence and subjective deliberate intertwining are the appearances of most special crimes.However,in some respects,they can usually only be judged.In which kind of mental state is dominant,it is also based on the main crime when sentencing.In the crime of malfeasance,the abuse of power belongs to the general crime,and the crime of malfeasance caused by some special subjects in the crime of malfeasance is a general and special relationship.The crime of malfeasance constituted by special subjects is also a crime of negligence or abuse of power in a certain sense.Therefore,in the study of the subjective sin of this crime,it is necessary to analyze the crime of abuse of power by special subjects.The fifth chapter studies the special form of the crime of abuse of power.The form of intentional criminal cessation is defined in criminal law as the state of criminal behavior that is suspended due to certain factors,such as attempted crime.In the national criminal law,this situation may only occur in intentional crimes.For this reason,the academic community sometimes refers to this situation by intentional criminal cessation.As to whether the crime of abuse of power has a cessation pattern,some scholars believe that the criminal law currently being enforced in China has clearly pointed out that one of the basic elements of the crime of dereliction of duty is to produce“significant losses”.Considering this factor,the unfinished form will not May appear in the crime of malfeasance.According to the common sense of criminal law,the above-mentioned criminal form may only occur in the process of intentional crime.For example,in the recognition of the crime of dereliction of duty,such a criminal form will not only confuse the two crimes,but also violate the overall design framework of the criminal law.It has a negative impact on the scope of the criminal law.However,according to the analysis in the previous section,because the author believes that the crime of abuse of power is a deliberate crime,including direct intentional and indirect intention,the major loss is the plot of the crime,and is the element that limits the scope of the punishment.Therefore,the crime should be criminal.Stop form.From another point of view,according to the principle of legalityof crimes and punishments,the sentencing standards of all crimes are based on the sin of crimes,that is,if the requirements of the criminal law provisions are already in place,the sin will reach the form of crime.If all the elements of the crime of abuse of power are not available,the crime of abuse of power may exist in the form of preparation,suspension and attempt.The sixth chapter analyzes the legislative perfection of the crime of abuse of power.In contrast to the main provisions of the crime of abuse of power abroad,the essence of the crime is grasped in essence,and the scope covered by the crime is modified.In addition,based on the relevant research content before this article as the theoretical basis,the crime of abuse of power and the crime of dereliction of duty were established.At the same time,the statutory penalty for abuse of power is obviously not consistent with the criminal law principle of consistent crimes and punishments.Therefore,the statutory penalty should be amended at the same time to meet the requirements of consistent crimes and punishments.