On Forms Of Subjective Fault Of Crime Of Abuse Of Authority

Crime of abuse of authority is an absolute imputation, however, due to the simple charges in an indictment adopted by the criminal law, the crime of abuse of authority and dereliction of duty are classified in the same article. In the judiciary practices, it has been considered that the act of abusing authority was a kind of a crime of dereliction of duty. Therefore, how to correctly define the crimes has not only become substantive departments'difficulty, but also the focus of the academia. This paper attempts to discuss the abusing the authority, with the compound offense theory, and clarifies the crime constitution of crime of abuse of authority, in order to help to correct the practices of the conviction and sentence. By using the theory of compound offense, this paper gives an analysis and explanation of the crime of abuse of authority, and it is divided into five parts.1. Posing the problem. It is generally believed that for the crime of abuse of authority and dereliction of duty regulated in the same article of law, one of the subjective aspects is fault, whereas, dereliction of duty is intentional. However, the common sense cannot explain the abuse of authority in realities of life. Moreover, common sense said that the basis of theory which a criminal there can be only one subjective criminal is shaken gradually.2. There are different views in many kinds of academic paper and books about the dispute of subjective in abusing authority and dereliction of duty. These points can be summed up as follows: one point is intentional theory, that is abusing authority is the crime with intention. Another point is fault theory, that is, the crime of abuse of authority is a fault, not intentionally. The last point is co-existence theory, that is, abusing authority can be a crime or a fault. In our opinion, the theory of China's Criminal Law should be improved and create Compound Offense. The form of compound offense is defined as a same criminal of both of willfully (limited to indirect intention) and the form of fault, to interpret a legal provision in a specific count of criminal, which has the form of intention and fault.3. The explanation of the compound offense theory.3.1 The analysis of the concept of compound offense, comparing with single crime.The implication is that the same criminal counts both intentional (limited to indirect intentional) and fault.3.2 The legislation on subjective criminal of foreign countries. These is one thing in common among France, Germany, America and the U.K., etc on the criminal law theory, that is, take the"regional"between intentional fault and negligence as a relatively independence or to be provided for the overall study , which is equivalent to our country's criminal law on excessive self-confident and indirect intentional fault.3.3 The basis of methodology on compound offense----fuzzy epistemologyFuzzy epistemology, which is opposite to the traditional precise epistemology, provides the basis of methodology on understanding the criminal phenomenon of compound offense. It is considered that,(1) People with scientific precision based on the epistemology has exceeded the rational, almost a homage to the extent. (2) Insist on the brief of change. From the sense of understanding, the world is complex, floating, so it is uncertain and difficult to describe by using a simple and accurate way. However, the emergence of the form of compound offense is in keeping with the special phenomena in Penal Code.3.4 The characteristics of the compound offense3.4.1 The criminal with subjective components of compound offense is result crime.3.4.2 The form of this kind of criminal is the compound of indirect intention and fault 3.4.3The constitution of the crime is special most of the time. They all have certain professional knowledge and skills, engaged in specific occupations or those who have some authorities.3.4.4 This kind of criminal is sentenced in grades by law3.5 The theory of compound offense is coincided with the crime, criminal responsibility and penalty. During the criminal of compound offense, no matter it is indirect intentional or fault, it is sentenced to a same counts. This goes against the Criminal responsibility Penalty Fairness Efficiency. There are two reasons.For one thing, it is hard to distinguish the priority between the indirect intentional crime and confident fault, in terms of subjective in the constitution of the crime. For another reason, the compound offense has multi-grades of imparting Criminal Methods. This is for those who have sufficient, conclusive proof that the perpetrator is subjective crime deliberately or indirectly relies on accurate fault crime conviction and sentencing to provide a legal basis, so as to avoid an objective incrimination, compatible implementation of the principle of criminal responsibility Penalty Fairness for providing legal protection.4. The analysis of compound offense in the crime of abuse of authority.First of all, it is scientific that the knowledge of indirect deliberately is considered as crime of abuse of authority. Secondly, it is possible that the acts of abusing authority is perpetration in the act may have foreseen the result of occurrence, but it still occurred under the mentality that may be subjective aspects or indirectly deliberately over confident fault.5. The significance of introducing compound offense in the crime of abuse of authority. The theoretical significance of the compound offense is to introspect about the present form of crime, and prompt the deeper development. It is a breakthrough to the traditional concept which is Law of the same counts only have the same form of a crime. Downplay the differences between the indirect deliberate and the confident fault, and as a broad range, not an insurmountable line, inputting the fresh idea in the research of the crime theory. In practices, it is helpful to get rid of the state of ambiguous in crime of abuse of authority. The practical significance of the form of compound offence is helpful to fight crime and reflect the protection function of criminal law.