Study On Subject Of Crime Of Malfeasance

Since implementation of revised Criminal Law, punishment to crime of malfeasance committed by civil servants has experienced a process of theoretic exploration and practical adaptation. The process has not yet come to an end so far. One of the key issues encountered is insufficient public understanding of theory and knowledge on crime of malfeasance, and shortage of acknowledgment and understanding of the gravity and harm of crime of malfeasance, as well as necessity and importance of punishment to crime of malfeasance, which may affect and restrict people's struggle against crime of malfeasance to some extent.In general introduction of this thesis, the author describes two most typical viewpoints in the study on subject of crime of malfeasance, i.e. "Viewpoint of Status" and "Viewpoint of Responsibility". Within a quite long period, these two viewpoints contrast sharply with each other, and each has its own opinion, which affects punishment to crime of malfeasance to certain degree, and further, public circles are also puzzled about it. In the sections followed, the author expounds the historic evolution on subject of crime of malfeasance from 1979 up to date, andlegislative profile of the two main systems of laws abroad on subject of crime of malfeasance; and concluded that "Western countries, especially countries practicing continental law system, are paying much attention to crime of malfeasance committed by civil servants, and in general rules or sub-provisions, many of them have stipulated in very detail the definition and scope of civil servants who are deemed as the subject of crime of malfeasance." Finally, the author believes that both "Viewpoint of Status" and "Viewpoint of Responsibility" have their rationality, and partial emphasis on either of the viewpoints would go biased. Because in fact, "Status" and "Responsibility" are two pieces of foundation stones that constitute the subject of crime of malfeasance, and they form one organic entity that can be hardly separated from each other.Chapter II is the highlight of this thesis. In this Chapter, the author explains main elements, especially the "Government agency" and "Engagement in public service" reflecting the substantial nature of subject of crime of malfeasance that contribute to subject of crime of malfeasance. This Chapter substantially clarifies the content and scope of two main elements of "Government agency" and "Engagement in public service", and resultantly, the definition of subject of crime of malfeasance becomes easy to make. In section 2, the author expoundsthe subjects of specific crimes of malfeasance indicated in Chapter IX of Criminal Law. We can see that different subjects of crimes will lead to different criminal objects to offence.Chapter III is detailed analysis on legislative interpretation. On Dec. 28, 2002, the legislative interpretation on application of subject of crime of malfeasance in Criminal Law was discussed and passed on the 31st Session of the 9th NPC Standing Committee, which presents theoretic basis and present significance. Interpretation of Criminal Law is unnecessary to always remain the same, and it can be developed and changed with the evolution of times. According to provisions of the Interpretation, the application scope of subject of crime of malfeasance is "enlarged", and this Chapter makes detailed analysis of related legal basis and judicial practice according to content of the Interpretation.Chapter IV of this thesis points out imperfect views in the Interpretation, and on such a basis, the author of this thesis forwards his own points of view: Two proposals can be adopted to appropriately expand the subject of crime of malfeasance; one is to directly change the subject of crime of malfeasance from the "Civil servants" to "State functionaries"; and the other is to add the 3rd item in provisions of Article397 of the revised Criminal Law, i.e. "If other state functionaries committed crimes indicated in the two preceding articles, they should be punished according to specific stipulations...