On Favoritism Crime

The crime of bending the law to serve one's personal considerations for favoritism (referred to as "the crime" or "this crime" hereafter) have existed in ancient China already. This crime, called "offense of imposing lighter or heavier sentences" at that time, was included in the official crime and constituted many quite stem rules for punishment. As a kind of official offense, the crime destroys the normal justice regulations, blemishes the national prestige and does much harm to the society seriously. Therefore, this crime has attracted great attentions in justice practice.This crime appeared as a new name after the Criminal Law in 1997 was promulgated. Comparing with others crimes such as malfeasance crime and malversation crime, the academic research on this crime is scarce and the judicial interpretation of this crime is comparatively over-dated. All of these have brought some difficulties to the detailed operations in justice practice. In view of the above-mentioned circumstances, the thesis analyzes and discusses this crime from three parts.The first part is bout the concept of this crime and its criminal constitution. The concept of this crime is consistent in all kinds of publications on the Criminal Law Science. And the thesis discusses the criminal constitution from four aspects as follows: 1. the criminal object. The criminal object of this crime shows that not only the normal law procedures are destroyed, but also the people's legal rights and interests are trespassed in some special situations such as a sinless person is prosecuted or convicted. So these form a complex object; 2. the criminal objectivity. The characteristics of the objectivity of this crime are presented from three aspects as follows: (1) intentionally protecting from prosecution persons they clearly know to be guilty; (2) subjecting to prosecution persons they clearly know to be innocent; (3) bending the judgments violating the facts and laws. Then, the characteristics of several sorts of special disputed objects are analyzed: (1) the identification of "guilty person" and "guiltless person". A "guiltless person" means that this person doesn't do anything harming the society orisn't thought to be guilty or be necessary to take on the criminal responsibilities, thought he or she maybe has done some but not enough harm to the society, by the Criminal Law. And a "guilty person" is about the suspect's behaviors in the former case, which means that this behavioral person in the former case is thought to be guilty if there are evidences proving that it should be dealt with as a criminal case; (2) The behaviors of bending the law to serve one's personal considerations for favoritism are consisted of three parts: adopting the forcible actions on the person they clearly know to be innocent, arresting the person that should not be arrested, illicitly changing the forcible fashions on the suspects or indictees that have been arrested; (3) the signification of "prosecution". It includes five kinds of behavior, i.e. registering case, being sued, judging, achieving evidences by investigating and taking forcible measures; (4) "Taking advantage of one's office" is necessary for this crime. However, one can be an accessory in common crime though he does not take advantage of his office. 3. The subject of the crime. (1) The responsibilities of the justice personnel have been given clearly in justice practice. And there are seldom disputes on whether the formal justice personnel, i.e. personnel with the official duties of investigating, prosecuting, judging or surveillance are the subjects of this crime. However, as the personnel structure of judicial organizations are rather complicated, there are lots of disputes in judicial practice in terms of whether the personnel, such as surveillance officers, judicial technical specialists, juryman, clerks, office stuff, should be included in "judicial personnel" or not. These persons can be prosecuted by this crime when they take on some duties; (2) an organization can not become the subject of this c...