Study On Crimes Of Malfeasance Due To Favoritism

Understanding of the clauses in the Criminal Law concerning the crime of malfeasance due to favoritism has long been controversial.The disputes focus on three points:First,questions lie in whether favoritism, as the original explanation as"for the benefit of his friend",is a requisite element to constitute the crime,and whether it is part of the deed of offence,or motivation,or purpose.The author concludes that favoritism is unquestionable a requisite element,as it is stated to help defining the crime.Furthermore,considering no matter the semantic interpretation of the clause,or the logic relationship between the deed of malpractice and the special benefit the offender seeks,favoritism should be interpreted as a subjective element,and it does not alleviate nor aggravate the crime's nature of social harm and criminological punishability, whether favoritism,as a behavior,does or does not occur.On the contrary,it is against the legislation purpose,and may indulge some offenses of this category,if favoritism is treated as a behavior.In this case, it is more appropriate to differentiate criminal motives from criminal purpose,and the author recommends that it would be more compliant with our legislation purpose and judicial reality,to treat favoritism as the criminal motive.Second,should this motive include those cases for the benefit of a certain unit and/or a certain group of people? The author suggest that "for the benefit of his friend" should not exclude the circumstance of offenses that the motives of which point to the benefit of a certain unit,or a certain group of people,taking into consideration the semantics,the nature of social harm and criminological punishability,and the purpose to curb the crime of malfeasance.Third,in cases which crimes of bribery and malfeasance are involved simultaneously,should it be determined as offense of one crime or two crimes? Should the sentence be based on the most serious crime or joinder of punishment on the two crimes? The author suggests it should be determined as implicated offense,instead of joinder of offenses or inclusive offense. However,the sentence should not be based only on the most serious crime and repeated punishments is prohibited,but rather follow the statutory principle of cumulative punishment while taking into consideration of modern theoretical study and legislation tendency on implicated offense,and the realistic need to curb corruption related crimes.These controversies have already significantly influenced the judicial reality:The first two questions have direct impact on the demarcation line between guilty or not guilty;while the third one usually influences the judgment and sentence.Therefore,the necessity and rationality of including favoritism as one of the requisite element of the crime have also been questioned.Then,how do other countries,or regions,with more developed legal system and jurisdiction experience, deal with this problem? In the comparative study of the criminal laws of US,Germany,France,Japan,Chinese Taiwan,none of the criminal laws of these country has similar stipulations.Actually,all controversies can be attributed to the impropriety and obscurity of related stipulations.Hence, scrutiny over related clauses on the bases of comparative and theoretical analysis is necessary.And unclarity,dispensability,and irrationality are found as major flaws in current stipulation.The author recommends favoritism to be removed from requisite elements,as to solve the problem of controversy,as well as to patch the loophole,while maintain the function and practicability of the Criminal Law.If revision is not suitable at the moment,legislative interpretation or judicial interpretation on these clauses is recommended,in case the uncertainty and unpredictability of judicial application influence negatively the legislative purpose to punish and curb crime of malfeasance.