Study On The Formation Of Breach Of Privilege Crime

The crime of abusing the office is a crime established by the New Criminal Code. With its further execution, several uncertainties on the stipulation of this crime in legislation gives rise to heated debates in theory and great confusions in practice, which consequently affecting the determination of this crime and the distinction between this crime and others.Through the study on the basic theory of the criminal law, from the angle of the dialectic materialism and by means of textual research and systematic methodology, this article encompasses the constitution of the crime of abusing the office and gives embedded arguments and expatiation, striving for the integration of theory with practice and giving influence and guidance to the practice.This article is divided into four parts, beginning with the examination on the subject of this crime in Chapter One; then follows Chapter Two viewing the determination of the subject aspect of this crime; Chapter Three focuses on the definition of subjective culpability of this crime; Chapter Four looks to several remarkable problems on the constitution of this crime.Basing on the idea of punishing crimes and carrying out the principle of a legally prescribed punishment for a specified crime unremittingly, this article draws the line for the scope on the subject of the crime of abusing the office. State personnel are included as follows: the personnel engaging in lines of duty in all levels of organs of the CCP, the CPPNC, democratic parties, and labor, youth and women associations as well; the personnel engaging in lines of duty in all levels of authoritative, administrative, judicial, prosecutorial and militaryorgans; the personnel engaging in lines of duty in the enterprises belonging to the government directly and the agencies authorized to perform certain governmental management functions according to pertinent regulations; the personnel engaging in lines of duty in the institutions with the characters of state organs established by the non-state organs; the leading personnel in the units with certain functions of governmental management despite any characters of corporations; the personnel who are qualified as cadres and authorized to perform some managing authority in basic units and the people's juries as well. The personnel in state head companies nominally while actually the sections of the state administrative organs and the personnel who are sent to state-owned companies to engage in lines of duty should not be defined as state personnel.The act of abusing authority is that the doer, taking the advantage of the status or powers resulting from his or her position, abuses the authority awarded by laws or regulations. Its characteristics determine that the act of abusing authority can only reflected as qua, instead of nonfeasance. It can be reflected as two types of circumstances: exceeding one's power and malperforming one's authority. The former is that the doer illegally decides or deals with the affairs not falling within the scope of his or her authority. The latter is that the doer deals with public affairs against his or her authority or illegally deals with them arbitrarily by right of the power he or she holds. As a result, when the standard of the border between qua and nonfeasance is set up accurately, the crime of non-performing authority is excluded from the types of modalities of the crime of abusing the office. Besides, the crime of abusing the office belongs to consequential offences. Therefore, in judicial practices, good understanding and command of the connotation of the heavy loss resulting from it are necessary fordetermining whether this crime is constituted. Because of the intervention of the contrived and natural factors, tremendous complexity is added to the affirmation of the causal relationship between the heavy loss and the doer's behavior. Generally speaking, as long as the behavior of the doer gives effect on the objective consequence of the heavy loss, the causal relationship between them can be affirmed.The modality of the...