On Boundary Between Crime Of Dereliction Of Duty And Nonfeasance Crime Of Intentional Killing

Scrimshank is one of crimes of dereliction. Although Chinese criminal laws of 1979 and revised criminal laws of 1997 has prescribed specially for crime of dereliction of duty, there is no a verdict of constitutive elements of it to this day,especially the controversy about subjective and objective sides of scrimshank, which is heated and never stops. Crime of dereliction of duty is easy to be confused with other similar crimes. Under this circumstance, it is necessary to do intensive analysis and exploration of crime of dereliction of duty to define correctly the crime.There are five parts in this paper. Firstly, main points of a case, that is the case of Wang instigating policeman Li to abandon waif. Secondly, details of the case. This part introduces the process of policeman Li's abandoning waif instigated by Wang, the political commissar of local police station of Chengguang in Beilun District, Ningbo. Thirdly, argumentative issue and differences in opinion. The main argumentative issue is that whether Tian and Liu's offence belongs to crime of neglect of duty or nonfeasance crime of intentional killing. Fourthly, analysis of legal principle. This part analyzes the constitutive requirements of crime of dereliction of duty, with the subjective and objective sides as the focal point, to put forward that crime of neglect of duty can be constituted by conduct or nonfeasance, and that the subjective side of crime of dereliction of duty can be constituted by negligence or indirect intent. The following is a brief analysis about constitutive requirements of nonfeasance crime of intentional killing. Then there is a comparison of crime of dereliction of duty and nonfeasance crime of intentional killing, and how to define the basis of conviction when the two crimes overlap. Finally, the conclusion of this case. According to the five parts analyzed above, the author views that Wang and Li's offence should be convicted as crime of dereliction of duty and penalty should be imposed according to this crime.This paper analyzes the constitutive requirements of crime of dereliction of duty in detail by surveying a case. The analysis of legal principle in part 4 is the key point of the paper. In this part, first, to the objects infringed by scrimshank, the author holds that the object infringed by scrimshank is the diligent administration of state personnel in official activities. Second, objective side of crime of neglect of duty is discoursed by discussing the acts and heavy losses of scrimshank and the causality between the two aspects. The main point is that act ways of scrimshank can be constituted by conduct or nonfeasance. Third, a brief illustration of subjective side of crime of dereliction of duty. Although criminal laws of 1997 has prescribed that the subject of crime of neglect of duty is state personnel, the definition is not fixed. The subject of crime of dereliction of duty needs to be defined further. Ever since a long time ago, there has been no a verdict about the subjective side of crime of neglect of duty. The traditional idea is that the subjective side of crime of dereliction of duty only can be constituted by negligence. However, the author considers that the subjective side can be constituted by negligence or indirect intent and this kind of indirect intent usually exists in the situation of actor's renouncement of duty. Last, considering it is hard to define crime of dereliction of duty and crime of intentional killing, the author compares the similarity between the two crimes and analyzes the constitutive requirements and height of conduct duty of both crimes. Then it is approved that how to convict offence to penalize a party when the two crimes overlap to make the punishment compatible with the sin of the party.