Analysis On Constitute Of Crimes Of Practice Favoritism And Pervert The Law

Crimes of Practice Favoritism and Pervert the Law is a kind of job crime, injuring the national judicial authority, besmirching the law, trampling human rights, the penal code constitution is originally the purpose of the offense to lie in the stroke and to cure those judicial staff members who profit oneself the feeling breakage judicatory candor, guaranteeing the movements of the judicature health.Constitute the theories according to the crime, profit oneself to abuse law the offense to include crime corpus, the crime a body, subjective aspect and objective four composing important items of aspect, among them, the crime corpus, subjective aspect and objective aspects all exist the more controversy in the theories field and the actual situation fieldses.The corpus that profits oneself to abuse law the offense is a judicial staff member, the judicial organ is divided into the judicial organ on the judicial organ and the broad sense on the narrow sense, the judicial organ on the broad sense not only includes thes court of the people, people the check hospital, but also includes to exercise public security official's organization, the national security organization that the pertaining to crime investigates the power and exercise the jail organization of take charge of the power.The educational circles and judicatories practice medium for with what standard judge this problem of" judicial organ staff member" category to exist two kinds of theories, namely the job standard say that say with body standard, two all have the place of the shortage, so should combine together, abstract is the substance standard and the form standards, then the investigation behavior person the implement abuse law time of behavior whether at implement the judicial job, at the same time whether have legal judicial job power source.These standards of basis, can judge people's police to only have to just can constitute this offense corpus under the condition of implementing the criminal case to investigate or jail taking charge of the job, people's juror profit oneself to abuse law and can also constitute this offense in judge activity;The party method staff member because of not have the form important item and shouldn't become this offense corpus;Professional technical personnel of judicial organ because of having the legal judicial job power source and also canning constitute this offense corpus;Combine the our country pertaining to crime lawmaking spirit and penal code theorieses say that the not judicial staff member and judicial staff members collaborate with the common implement to profit oneself to abuse law the behavior composing crime of, should abuse law by profit oneself the offense accomplice theory place to the not judicial staff member.The subjective fault that profits oneself to abuse law the offense includes only intentionally, the mistake can't constitute this offense, and intentionally also only the ability is directly and intentionally, don't include the indirectly intentionally this kind of circumstance;" Profit oneself" the problem is one of the important problems of the subjective aspect of this offense, in comprehending and applying, should include" feeling of " in the middle of" profit oneself" make to unify the comprehension, two indivisibilities.See up from the text righteousness, profit oneself is the meaning of" follow the private interest personal relations", is a kind of subjective and mental appearance but is not to turn outside of objective behavior;" Feeling" shouldn't be independent in" private" to comprehend," feeling" is the concept of the different from" private" feeling" from belong to" private", but be sign in not only" private", the penal code rules the details of" feeling of " alone to have the superfluous suspicion perhaps;It is subjective and mental appearance to" profit oneself", is the crime motive, not the crime purpose, is also not a criminal offence, is more impossibly the comprehensive body of the motive and behavior, so" profit oneself" is not an essential composing important item of this offense, but should be regarded as the crime details to consider in measure .Should do to expand the comprehension for profit oneself of" private"ly, the private behavior of the small group of or take a solid of" Mr." as the personal and private behavior and should be return in to profit oneself to abuse law the offense category. The meaning that abuses law the behavior is to distort facts, breaking the law, judge to abuse law the behavior of standard mainly is see the behavior whether person disobeyed the job duty that it carry or not, this kind of job duty is not simple law duty and the morals duties, but a kind of judicatory work special occupation duty, disobey this kind of duty, also is to disobey the law physically.According to the provision of the our country penal code, profit oneself to abuse law the offense and can be divided in to know perfectly well the not guilty but make it be subjected to pursue for, know perfectly well the guilty but shelter intentionally and don't make it be subjected to pursue for and abuse law to judge three kinds of manifestations intentionally in pertaining to crime judge.Endanger the behavior can be divided in to be the form and don't be the form, don't be the form to abuse law the behavior and can establish to profit oneself to abuse law the crime, judge not to be the form abuses law the behavior of theories foundation come from" the duty say".Investigate which behaviors don't be of abuse law the behavior to want to see whether behavior have or not subjective first top of intentionally;The next in order, should notice the explicit behavior person and don't be whether disobeyed the job duty that it carry;Again, should don't be the form to profit oneself to abuse law the crime definitely not with endanger the result existence or not affect it establish;End, should notice to hold this offense and that the boundary of the offense, notice especially will with not be for the outside manifestation profits oneself to abuse law the crime and play suddenly the job guards the offense to take into the distinction strictly.The crime object that profits oneself to abuse law the offense is the form " not guilty of person" and" the person of the guilties"," guilty of person" to say to all exist many controversies in the theories field and judicatory practice," guilty of person" says in the form on the lawmaking is not enough accurate, because only pass by to judge the organization to judge by law, a person then can be announce the guilty enough, other any unit and personal have no business to decide a person whether guilty, therefore, the parlance " guilty of person" gives easily artificial become a kind of misunderstanding, also will give the judicatory practice bring the otiose dispute.This text think that the description concerning" the person of the guilty" should change for:" It is criminal person to know perfectly well, or know perfectly well is person who has the crime suspicion and there is full proof can prove to is an actual guilty of person".In the civil case judgment of abuse law the behavior is a blind spot once on the research of this offense, in the eyes of the social bane, in the civil case judgment of abuse law its social bane of behavior to bear comparison with the pertaining to crime judgment;The offense of the accomplice constitutes the angle to see, in the civil case judgment of abuse law the behavior to also have the composing important item of this offense.Therefore, should penal code abuse law the behavior to return the civil case takes up the process in of in this offense of category.