Analysis On Subject Of Crimes Of Dereliction Of Duty

The subject of the Crimes of Dereliction of Duty is an important concept in Criminal Law. Due to both the equivocate of ,and the confusing logic related to this concept in the texts of the Criminal law, there have been many divergences of opinion on it. Although some relevant legislative amendments and judicial interpretations have been promulgated, it remains a subject of lively debate. In the present article, the author's primary effort will be to explore the definition, feature, scope of this concept and how to improve related regulations in Criminal Law. Excluding the preface, the present article is divided into five chapters. In the Preface, the author makes a general analysis of the defects relevant to this concept in Criminal law context, showing the theoretical and practical values of research on this issue. In ChapterⅠ, the author discusses the definition and basic features of this concept with details. Firstly, the author presents a new definition of the Crimes of Dereliction of duty. In broad meaning, the crimes of dereliction of duty includes not only the crimes prescribed in the Nine Chapter of Criminal Law, but also crimes of embezzlement and bribery, crimes of servicemen's transgression of duties; In narrow meaning, the crimes of dereliction of duty refers to the crimes prescribed in the Nine Chapter of Criminal Law, committed by any functionary of State organ only. Secondly, the author presents a new notion about subject of crime. In the author's opinion, subject of crime refers to anyone who fall into common elements and special elements of subject of crime. Accordingly,the author put forward that the Subject of the Crimes of Dereliction of Duty refers to anyone who fall into the common elements and the identity as a functionary of a State organ, holding which is the basic feature of the subject of the Crimes of Dereliction of Duty. Thirdly,the author presents a new theory about the identity of a functionary of a State organ that the so-called identity of a functionary of a State organ means a kind of legal relationship of authorizing and being authorized, entrusting and being entrusted, etc. according to law. As for so-called "public service", the wording of "public"aims at indicating the identity of the person who performs the "service". In ChapterⅡ, the author studies the scope of the subject of the crimes of dereliction of duty. Firstly, the author points out that there is not any regulation in the criminal law saying that the subject of the Crimes of Dereliction of Duty is functionary of a State Organ, although people get this impression judging by the legislative intention and related regulations in the Specific provisions; Secondly, State organs should be divided into State organs both in narrow sense and in broad sense. the author presents a new concept of state-organ –in-criminal-sense, which means that State organ refers to not only legislatives, executives, judiciaries, procuratorates, and military organs at all levels, but also Chinese Communist Party and democratic parties'organs,the Chinese People's Political consultative conferences at all levels; Thirdly, to the author, State Functionary should refer to those who perform public service in a State Organ or a organization which exercises the administrative power of the state according to law, rules and regulations, or engaged in public service in a organization entrusted by a State organ with the exercise of power on behalf of itself, whether they are enlisted in the staff or not. In Chapter Ⅲ, the author makes an analysis of some logical relations relevant to this concept. Firstly, the author discusses the relationship between a State functionary and a functionary of a state organ,and points out that according to Article 93,"State functionaries as mentioned in this law refers to persons who perform public service in State organs",but the intention and the extension of "persons who perform public service in State organs"is the same with "the functionaries of State organs". Secondly, the author discusses the relationship between functionaries of State organs and those who "shall be regarded as State functionaries"proscribed in the second paragraph of Article 93. The author founds out that there is a overlapbetween the former and the latter. In another word, Article 93 failed to distinguish one from the other accurately. Thirdly, the author discusses "the other persons who perform public service according to law". There are many different, even conflicting points of view on this regulation. In the author's opinion, it is relics of the Institute of Analogy. In Chapter Ⅳ, after making a review of the history of the subject of Dereliction of duty, the author compares the differences between the 1979 Criminal Law and the 1997 Criminal Law, pointing out that in the former, the scope of the subject of this crime is accorded with the social reality at that time and, though, it's so broad as to include the staffs in the collective economic organizations; In the new Criminal Law,the scope is confined to functionaries of State Organ only,but what the scope of the State organ is, and how to judge whether a person is a functionary of State organ or not is not clear. Then, the author introduces the foreign situation of the legislation about this, holding that the subject either in foreign law or in our one are relevant to those who are engaged in public service, but the scope of those who are engaged in public service is broader and more definite in foreign law than in our law, and that in foreign law there are regulations concerning the non-pure crimes of dereliction of duty, which means that any civil servant who commits the other crimes than the crimes of dereliction of duty should be given a heavier punishment,and there are regulations that persons engaged in special public service e.g. senators and representatives can not be investigated for what they do when they are exercising duties in senates or congresses in accordance with regulations related to dereliction of duty. In ChapterⅤ, the author analyzes the necessity and possibility about the perfection of legislation related to this issue. The author puts forward that the scope of Subject of Dereliction of Duty should be confined within functionary of State Organ, definitely and explicitly. First, the author suggests that the Article 93 be amended as fellow: "State functionaries as mentioned in this law refers to functionaries ofa State Organ, and persons who are assigned or entrusted to perform public service by and stand for State-owned companies, enterprises, institutions. Functionary of State organs mentioned in this law should refer to persons who perform public service stand for a State Organ or a organization which exercises the administrative power of the state according to law, rules and regulations, or engaged in public service in a organization entrusted by a State Organ with the exercise of power on behalf of itself, whether they are enlisted in the staff or not; The state organ as mentioned in Criminal Law refers to not only legislatives, executives, judiciaries, procuratorates, and military organs at all levels, but also Chinese Communist Party and democratic parties'organs at all levels", the Chinese People's Political consultative conference at all levels"Second, the author suggests that the second Paragraph of the Article 398 should be amended as fellow:"any person who is not a functionary of a State organ commits any act mentioned in the preceding paragraph,shell be punished in accordance with the proceeding paragraph",because a person who is not a functionary can not"commits the crime",as stated in original text,which can be committed by a functionary of State organ only,according to Criminal Law。Third, the author suggests that a paragraph be added to the Article 397 that People's representatives should not be investigated for their speeches,votes in the People's congress at all levels according to the proceeding paragraph.