The Determination Of The Crime Of Bending The Law From Selfish Motives

The crime of bending the law from selfish motives is one of the official offense, which is a model performance of judicial corrupt. This crime not only seriously blemishes the national prestige, destroys the fair of law, but also encroaches upon the citizen's legitimate rights and interests. As the legislations of this crime is insufficiency and the judicial interpretation is comparatively over-dated, some difficulties have been brought to the recognitions of this crime in justice practice. In view of the above-mentioned circumstances, the author decided to make this thesis to analyses the knotty problems concerning this crime in judicial practice, hoping which can be beneficial to the judicial practice.The thesis consists of four parts.Part one discusses the determination of the criminal objectivity. In this part, the thesis firstly analyses the two viewpoints about the signification of"prosecution", then expounds the author's own understanding that"prosecution"includes such behaviors as not only registering case, being sued, judging, achieving evidences by investigating, but taking forcible measures. Secondly, there are various opinions about the identification of"guilty person"in judicial practice, including the theory of the court's sentencing, the theory of registering, the theory of suspected for crime. The thesis analyses these different viewpoints respectively, and expounds the author's own understandings and the basis for it. The author agrees to the theory of suspected for crime. Thirdly, in judicial practice, judicial staff intentionally aggravates or reduces the prosecution on the suspected criminal, that is"aggravate prosecution"and"reduces prosecution". According to the judicial interpretation, these two kinds of prosecutions should be included in the"prosecution"of this crime. Finally, the author considers that"taking advantage of one's office"is necessary for this crime. And this advantage should be defined narrowly, that is to say, judicial staff should only take advantage of his own office.Part two discusses the determination of the subject of this crime. Firstly, the thesis defined the scope of the subject of this crime. There are lots of disputes in judicial practice in terms of whether the personnel, such as judicial technical specialists and juryman, should be included in"judicial personnel"or not. The author considers that judicial technical specialists can be prosecuted by this crime when they take on some duties, and the juryman must be included in"judicial personnel", because they have the same duty with the judge. Secondly, the thesis discusses whether an organization can be the subject of this crime or not. The author considers an organization cannot be sued as this crime, the person who made decisions should be prosecuted by this crime.Part three discusses the determination of the subjectivity of this crime. The thesis firstly starts from the basic theories of criminal jurisprudence, combining itself with the judicial practice, make a detailed analysis of the type of intention in this crime, wherefrom gets the conclusion that the form of culpability of this crime is the deliberate intention, the indirect intention can not be included in. Secondly, the problem of"for favoritism"is also a focus of dispute in judicial practice. The author analyses the exact meaning of"for favoritism", then get a conclusion that the behaviors for the advantages of a small staff can be considered to be"for favoritism". There are four opinions about the nature of"for favoritism", including the theory of intention, the theory of behavior and motivation, the theory of motivation and the theory of behavior. The theory of intention is not right, because it mix the intention and the motivation. The theory of behavior and the theory of motivation and behavior are also wrong, because they consider"for favoritism"as the behavior, which is out of accord with the intention for setting this crime and the judicial practice. The author agrees to the theory of motivation. Part four discusses the determination of the form of this crime. About the problem of complicity of this crime, the thesis makes its discussion mainly on the accomplice category of executor consists of non-judicial officers and judicial staff. The non-judicial officers can be not only the abettor and aider, but executor. About the problem of the number pattern of offenses in this crime, the thesis discusses the cocurrent of this crime with the crime of abusing one's power, the crime of framing one to retaliate, the crime of misprision, the crime of perjured and so on. The thesis stresses on the analysis and expound of the cocurrent of this crime with the bribery crime. The author considers that this case should be defined as"the law and regulation cocurrent". About the form of consummation and unaccomplishment of this crime, the author consider that this crime has been consummated, as long as one of the behavior of this crime has been done by judicial staff, disregard whether the purpose of committing this crime has been achieved.