Research On The Subject Of Crime Of Chinese State Functionaries

The subject of crime of Chinese state functionaries has been disputed concept in the theory of criminal law and practice of justice. In china, new and old criminal law as well as numerous legal document all have given their own regulations; however, all these regulations have the problems of over-generalized definition and uncertain scope, etc; moreover, these regulations lack oneness with some conflict and confusion. This dissertation begins with the history of the subject of crime of Chinese state functionaries and analyzes relevant regulations in current laws of China; moreover, this dissertation analyzes and discusses the concept, character and scope of this special subject of crime and puts forward perfect suggestion for legislation of subject of crime of state functionaries based on learning relevant legislation from foreign countries, Hong Kong, Macao and Taiwan. This dissertation consists of four chapters apart from introduction and conclusion.The first chapter reviews the evolvement of legislation of the subject of crime of Chinese state functionaries and briefly introduces the regulation and dispute in related theory and practice with three main stages. The first stage is about evolvement of legislation of the subject of crime of Chinese state functionaries before the criminal law was promulgated in 1979, which discusses the initial and incompact legal document about crime by taking advantage of duty from regulation on punishment of corruption by Shensi-Kansu-Ningsia Border Region the criminal law was promulgated in 1979. The second stage is about evolvement of legislation of the subject of crime of Chinese state functionaries from the criminal law was promulgated in 1979 to new criminal law was promulgated; during this time, there is the centralized and uniform regulation; however, with the tremendous change in political and economic reform, the difference and contradiction become more and more and the dispute in theory and practice becomes more and more serious. The third stage is about evolvement of legislation of the subject of crime of Chinese state functionaries after new criminal law was promulgated in 1997, which gave specific and concrete definition about this subject of crime, but there are many disputes about the connotation and concrete scope.The second chapter mainly discusses the concept and characteristics of subject of crime of state functionaries. Firstly, based on the current law of china, this chapter clearly defines the concept of subject of crime of state functionaries, which refers to the personnel who take out duties in the name of state and carry out public affairs including organization, command, supervise and management for government based state administration and law in certain social organization. In order to make the concept clear, the writer concludes four important conditions, the first one is that state functionaries must work for certain social organization; the second one is that they must carry out organization, command, supervise and management towards national or social public affairs according to law; the third one is that they take out duties in the name of state; the last one is that they must carry out the duty of line including organization, command, supervise and management towards public affairs. Meanwhile, writer also distinguish and discriminate the relation and differences among state functionaries, state organ staff and the future state functionaries of subject of crime.Correctly understanding the essential characteristics of the subject of crime of state functionaries is very crucial. Firstly, the Writer summarizes several points of view about this in the current circle of theory including theory of official business, theory of identification and theory of possession. Based on the analysis of these points of view, the writer believes that the theory of official business, cognizance is appropriate, that is to say, the essential standard of cognizing the person is subject of crime of state functionaries or not should be whether deal with official business or not and the essential character essential of state functionaries should be dealing with official business. The connotation of dealing with official business should be state official business, that is to say that dealing with official business in criminal law only refers to organizing, supervise and managing national polity, economy, legislation, justice, administration, military affairs, culture, education, sanitation, science and technology and so on, and , exercise state power in the name of state. Its main characteristic is that official business possesses characteristic of management, characteristic of representation of state and characteristic of function; meanwhile, the writer distinguishes the official business, duty and working affair.The subject of crime of state functionaries must possess the characteristic in form of holding a post or dealing with official business in specialized unit, institution and organization and apart from the essential characteristic of dealing with official business. Chinese criminal law calls this as characteristic of identification. State functionaries and actual state functionaries in other forms should deal with official business in specialized organization, deal with official business with accreditation or deal with official business according law, which is the characteristic in form of dealing with official business. The subject of dealing with official business belong to state organs, state-owned firms, institutional unit and people's organizations, who gain their status by legal vote, appointment, engagement accreditation and so on, which are necessary condition and approach. Status and official business related to each other closely.The third chapter discusses the scope of the subject of crime of Chinese state functionaries, which is called as category or categories of the subject of crime of Chinese state functionaries m in Criminal Law theory. According to the provisions of Article 93 of the Criminal Law, the category should include standard Chinese state functionaries, namely, state organ or functionary and personnel treated as state functionaries, namely, the actual state functionaries, who include personnel dealing with t Public service in state-owned unit and personnel dealing with t Public service according to law. Meanwhile, there are two especial regulation, namely, personnel who manage state-owned property entrusted by state organs, state-owned firms, institutional unit and people's organizations regulated by the provisions of paragraphs 2 of Article 382 of the Criminal Law and the personnel of state-owned Insurance Company regulated by the provisions of paragraphs 2 of Article 183. The writer discusses the concept, characteristic and scope of the personnel mentioned above one by one and analyzes some serious disputes, for instance, whether organ organization at all levers of Chinese Communist is state organ or not; whether missionary in sovereign organ includes deputies to the people's congresses at all levels or not; whether State-Owned corporation and Enterprises include only corporation and Enterprises funded solely by the state, or corporation and Enterprises controlled and shared by the stat; whether missionary at the organizations of self-management at the grass-roots level introduces'other personnel dealing with the affairs of the whole country according to law as to state missionary or not and so on, which further clearly definite the scope of subject of crime of state functionaries.The fourth chapter discusses the process of perfect the legislation of subject of crime of state functionaries. The writer puts forward related suggestion based on learning relevant legislation from foreign countries, Hong Kong, Macao and Taiwan and analyzing the current problems in legislation and justice. Firstly, regulating the name as Public Servants, which not only directly shows their essential characteristics as dealing in public service according to law, but also meets the custom of international criminal legislation; Secondly, giving amendments and supplements to its definition, that is Public Servants refer to personnel dealing with the affairs of the whole country in state organ, state-owned company, institutional unit and people's organizations and the legitimate duty status by being authorized, submited and delegated by state organ, state-owned company, institutional unit and people's organizations and other personnel dealing with the affairs of the whole country according to the law. Thirdly, defining its essential characteristic is dealing with the affairs of the whole country, namely, taking whether dealing with the affairs of the whole country or not as basic standard for disc riming this kind of subject. Fourthly, the writer has further defined the scope of this kind of subjects.