Research On Several Problems Of Crime Of Power Abuse

Crime of Power Abuse was established by Criminal Law of P. R. China in 1997. As stipulated in Article 397, the inexact formulation of Crime of Power Abuse has given rise to disputes in theoretical field and puzzles in judicial practice. This article tries to clarify some problems so as to benefit the research on such crime and judicial practice by discussing the legislative evolution, constitution of crime, judicial conviction and legislation improvement of Crime of Power Abuse.This article is divided into such five parts as Preface, Summary of Crime of Power Abuse, Constitution of Crime of Crime of Power Abuse, Judicial Conviction of Crime of Power Abuse, and Legislation Improvement of Crime of Power Abuse.Preface tells about the importance and practical significance of punishing Crime of Power Abuse.Summary of Crime of Power Abuse narrates the legislative evolution, classification and concept of Crime of Power Abuse. Such crime has a long history, of which relative provisions can even be seen in ancient China to impose punishment on government officials. Crime of Power Abuse has also been improving since the foundation of New China. In a broad sense, Crime of Power Abuse means the acts performed by State Personnel when carrying out tasks, which constitute crime for violating rules of duties, failing to exercise their functions or wrongly exercising their functions; in a narrow sense, Crime of Power Abuse means the provisions of Article 397, which is also adopted by this article that Crime of Power Abuse defines the serious acts of government functionary to infringe upon legal rights and interests of the state, social public and individuals when they exceed their power, fail to perform their duties or exercise power illegally.To begin with traditional theory of constitution of crime, Constitution of Crime of Crime of Power Abuse discusses the four elements of crime constitution of Crime of Power Abuse. Complex object thereof includes social relationship reflected by normal management of State Organs as the major object and public interests relationship as the secondary object. Objective aspects thereof consist of either act or act of omission. Subject thereof should not be limited to functionaries of State Organs; rather, it should include NPC members, CPPCC members, and personnel in the Party and CPPCC organizations at different levels ("Government Functionary"in short). Subjective aspect thereof is intention (either indirect intention or direct intention). Intention means that functionaries of State Organs expect or let go heavy loss suffered by public properties, interests of the State and people with being fully aware of the fact that their power abuse may cause so.Judicial Conviction of Crime of Power Abuse gives an account of the difference between Guilty and Not Guilty in such crime, and the difference among Crime of Power Abuse, Crime of Dereliction of Duty and Crime of Bribe by special subject. The key to tell the difference between Crime of Power Abuse and general power abuse on basis of criminal law in force, and relative legislative and judicial interpretations, lies in whether the power abuse results in heavy loss on public properties, interests of the State and people. Crime of Power Abuse stipulated in Article 397 is the ordinary of its kind; Crime of Power Abuse of special subject is special provision of such crime, in which this principle shall govern that special laws are prior to ordinary laws. Crime of Power Abuse and Crime of Neglect of Duty have both similarities and differences. In accordance with criminal law in force, they have the same subject (functionaries of State Organs), same object (normal management of State Organs), and the same objective aspects (heavy losses on public properties, interests of the State and people). On the other hand, they have different direct object: complex object of Crime of Power Abuse includes social relationship reflected by normal management of State Organs as the major object and public interests relationship as the secondary object; direct object of Crime of Neglect of Duty is diligence of functionaries of State Organs. Subjective aspect of Crime of Neglect of Duty is negligence while that of Crime of Power Abuse is either indirect intention or direct intention; besides, such two crimes also have difference in objective aspects. The overlap of articles of whole law and partial law occurs in Crime of Power Abuse and Crime of Bribe: Crime of Bribe is whole law and Crime of Power Abuse is partial law. Conviction and measurement of penalty in aforesaid overlap of articles shall abide by the principle that whole law is prior to partial law and use the other principle as supplement that serious punishment law is prior to light punishment law.Legislation Improvement of Crime of Power Abuse sets forth the suggestion on legislation of Crime of Power Abuse talking over legislative modes, subject of crime, objective aspects and legal sentence. In detail, Crime of Power Abuse and Crime of Neglect of Duty shall be separately stipulated; functionaries of State Organs shall be changed as government functionary; use serious nature to replace heavy loss; raise the legal sentence of Crime of Power Abuse and add punishment against property and qualification sentence.