| In the recent years, offence (disturbance) of public function is a common occurrence, and it shows a growing trend. Item 277 of the criminal law in operation defines offence of public function though, as it's too simple and abstract, it's hard to operate in juridical practice. In the field of theory on penal law, discussion on offence of public function is less and lack of depth. So, it's very important to study crime of disturbance of public function for completion of current criminal law and deepening study of science of criminal law.Mainly in a method of integrating theory with practice, the article elaborates crimes of offence of public function in such four respects as object of crime of offence of public function, targets of crime of offence of public function, objective respects of crime of offence of public function and affirmation of crime of offence of public function, so as to reveal deep implication of crime of offence of public function, affirming objectively crime of offence of public function, using correctly law and just punishment, and for safeguarding unity of the law.The first part "object of crime of offence of public function".The part mainly exposits several kinds of objects. The same kind of object is social administrative order. The second kind is public order. There are three direct objects, i.e. state personnel's public function according to the law, the national people's congress' and at-all-level-congress' deputies' public function when implementing position as deputies, and red cross personnel's public function according to the law when implementing their position in natural calamity and emergencies.The second part "targets of crime of offence of public function". The part mainly exposits affirmation of criminals of offence of public function. According to principles that constitution is supreme and measurement of crimes are legally determined, personnel in various-leveled organs of the Communist Party of China and in the Chinese People's political Consultative Conference do not belong to state organs' personnel, they are not targets of this crime. According to principle that measurement of law is legally determined, personnel entrusted by the state organs donot belong to the state organs' personnel. However, juridical and legislative interpretation by The Supreme People's Procuratorate and the National People's Congress widens the scope of the state organs' personnel. People entrusted with implementation of public function are included in the state personnel. In this case, these people are also targets of this crime. In fact, this interpretation oversteps regulations of the criminal law, which is worth discussing. According to the principle that measurement of law is legally determined and one cannot take part in public affairs activities themselves, the state personnel's relatives do not become targets of this crime. People in mass autonomous organizations, like urban residents' committees, villagers' committees, can be regarded people entrusted with implementing public function only when they are implementing public function, so can be targets of this crime. But when they implement public function of mass affairs, they may not become targets of this crime.The third part "objective respects of crime of offence of public function". The part mainly exposits tenable prerequisites of offence of public function, i.e. legality and time adaptation of public function, and important contents of objective respect of offence of public function, namely violence and threatening with force. First, legality of public function should be studied. Starting from scope of the law, we could define legality as that implementation of position by the state organs' personnel is not only legal substantively, but also formally. Legality of public function should be judged in court through three respects. They are: if implementation is by law, if function's content is legal and if method for public function's action is legal. Then, study time adaptation of implementation of public function. The period of implementing public function is defined as time from preparation for certain public function to completion of the whole function action and steady results, and correct comprehension on preparatory work and completion of implementation of position. At last, study methods of violence and threatening with force through analysis of implication, feature and degree of violence and threatening with force.The fourth part "affirmation of crime of offence of public function". The partmainly exposits several questions on juridical affirmation. First, draw a clear line between offence of public function and non-offence of public function, and distinguish between offence of public function and illegal action resisting the state organs' personnel. Secondly, draw a clear line between offence of public function and other crimes, and distinguish between offence of public function and crime of gathering a crowd to stop rescue of purchased women and children, crime of refusing to carry out judgment and ruling, crime of taxation-resistance, crime of disturbance of court order, crime of disturbance of soldier's implementation of mission, and distinguish between action of purposely stopping the state security organs and public security organs from implementing the state security mission according to the law and crimes of shelter and shield. At last analyze crime number of disturbance of public function according to certain cases. To criminals having committed both disturbance of public function and purposely injuring, the latter severer act should be punished for. To actors resisting inspection by the state personnel with violence and threat when organizing others to cross the national border illegally, penalty will be measured according to the section of criminal law, i.e. within the scope of adding punishment while offence of public function is not affirmed. To actors resisting inspection when smuggling with violence and threat, both crimes of smuggle and offence of public function will be punished according to the section of the criminal law. |
