Stematic Research On Crime Of The Serviceman’s Violation Of Duty

From 20th century 80’s, research on military law in China began along with the national position of reform and opening-up and the situation of legal system build of PLA. Since 1981, by concerning on the punishment of crime of the serviceman’s violation of duty, scholars began to study the military penal. In a sense, the crime of the serviceman’s violation of duty both is the core problem of military penal, also is“The Initiator”of research on military law. Apparently, choosing the crime of the serviceman’s violation of duty to study is significant and practically valuable.Though nearly 30 years’study of the crime of the serviceman’s violation of duty has gotten many theoretical results, but the research work appears serious defects, particularly scholars ignore the importance of systematically researching way in the process of the research on crime of the serviceman’s violation of duty, thus leads the academic research to encounter a lot of problems.In view of this status, this article innovatively divides the crime of the serviceman’s violation of duty into”external system”and“internal system”, based on the“duty“words, form the static system and dynamic rules two perspectives, and systematically studies the crime of the serviceman’s violation of duty,and gets some related theoretical conclusions and practical advices. Specifically, beginning with the context of jurisprudent concepts, summarizes the abstract concepts from the rules, after analysis of them, finds that all of these concepts are attributable to the concept: duty, though they are differently abstractive degree. And these concepts from rules construct an external system,“duty”is the core of this system yet. Taking into account of the external system cannot solute the valuable contradictions of crime of the serviceman’s violation of duty rules, this article begins to concern on legal principles, and claims that“best discharge duty“is the value orientation of crime of the serviceman’s violation of duty. And based on this premise, establish an internal system of the rules which is composed by the principles. Then this article finds that“violating duty“is the formed basic of the rules, and“duty”also is the core of this basic and the link point between the external system and the internal system.Based on above analysis, this article begins to research dynamic operation of the rules, and finds that legal interpretation is significant to law application, furthermore“duty”has unique status and significance and exert special role: the function of“criterion”,”purpose”,”basic”. Then by analyzing”statutory crime principle”and the text of rules and the legislator’s intent, the author finds the limits, standard and object of specific legal interpretation. After determining these theoretical premises, this article by using the function of“duty”concept begins to interpret the rules which intents to eliminate the flaws, especially to conflict and potential gaps of rules, accompanied by some targeted cases. Then basing on“duty”concept this article researches on how to improve these rules of crime of the serviceman’s violation of duty, at the legislative level, by filling the obvious gaps and field gaps which as defects of the rules, cannot be eliminated by legal interpretation, and proposes correspondingly improved countermeasures.