Favoritism Is Not The Transfer Of Criminal Cases

The crime of Engaging in Malpractices for Personal Gain and Failure to Submit Criminal Case is an accusation newly enacted in 1997 Criminal Law Code. It is one of the most important malfeasant crime cases investigated and handled by prosecutorial organs. Its addition has effectively restrained some corruptive phenomena in administrative enforcement domain, which can help to improve relationship between government and people, and promote administration according to the law. However, due to legislative defects and judicial interpretation's delay, the crime has arisen much controversy both in criminal law theory and judicial practice. This paper will inquire into such issues as the range of the crime's subjects, judgment standard over whether he/she should transfer according to the law, how to understand the connotation of and how to handle the involvement with the crime of taking bribery, etc. The author hopes this article will be good for the judicial determination and application of this crime.Apart from the foreword portion, the main body of this article is made up of five parts, which totally amounts to about 33000 words.The foreword part mainly introduces the general situation about legislation of Not Submitting Criminal Cases, the significance of its establishment and existent problems.In the first part, the paper makes some determination and analysis over the range of the crime's subjects, by associating with the current status of administrative enforcement in China and some laws and regulations concerned. The author holds that administrative enforcement personnel refer to all those staff that, according to the law, have been authorized to execute administrative enforcement power. In other words, they include staff working and engaging in administrative enforcement activities at administrative enforcement organs, organizations empowered by law and regulations or entrusted by administrative organs, people directly entrusted by administrative organs and dealing with administrative enforcement affairs, and especially principle or managing head of administrative enforcement organs. Besides, staff of public security organs could be the subjects of this crime, but we should specifically analyze the issue according to the quality of their duty and responsibility performance, ratherthan casual determination by personal identity. As to those Party's disciplinary inspection and supervision cadres, the author thinks that they shall be treated differentially according to our country's legislative and judicial practice and current factual circumstances as well. Moreover, the writer suggests that some regulations about looking into and punishing some unit having committed this crime for its criminal responsibility shall be enacted into the law.In the second section, the author analyses and illustrates the crime from the characteristics of its objective aspects and brings forward some important points of view. For example, the writer advocates that the prerequisite of this crime is failure to transfer, the target of failure to transfer is criminal case, failure to transfer includes more than omission to turn over to judicial organs, whether failure to transfer or not shall has a dividing line of time, and whether he/she should transfer according to the law shall be judged not only by criminal law, but also by relevant regulations of criminal procedure law, etc. Furthermore, through the determination and analysis of Engaging in Malpractices for Personal Gain, the author proposes that it shall not be a constituent part of this crime and, as such, it shall be deleted from the nature of this offense. That is to say, she maintains that the name of this crime shall be changed into the crime of Failure to Submit Criminal Case and the situation of Engaging in Malpractices for Personal Gain shall be regulated as a more serious circumstance of that crime.The third part of the paper emphasizes some research and discussion on such understanding issues as the connotation for Personal Gain and how to comprehend full awareness. As far as the problem of whether for Personal Gain and full awareness shall be presuppositions of the crime is concerned, the author thinks that the notion for Personal Gain shall also include for the interests of relevant unit and sub-group. Besides, she holds that the condition of full awareness, as human being's subjective psychological activity, shall be understood as unknown is impossible. However, since different administrative law-enforcing officers have different powers and thus their possession and understanding level over objective circumstances of whether he/she should transfer the case to judicial organs may be also different, relevant judgment standard over full awareness shall differ accordingly. As for specific administrative enforcement officer, as long as accumulated evidence showsthat the conduct of wrongdoer has exceeded the regulation scope of administrative law regulation, he or she shall be regarded as full awareness. As to principle official of concerned unit or department, when specific administrative enforcement subordinates have truthfully reported that relevant wrongdoer has some suspect for crime and shall be transferred to judicial organ, he or she, as the principle official, shall be regarded as full awareness.The fourth portion of the paper, from the theoretical aspect, makes some analysis and judgment on various viewpoints of implicated relationship between the crime of Engaging in Malpractices for Personal Gain and Failure to Submit Criminal Case and the crime of taking bribery. The author believes that when this crime happens to be related with the crime of taking bribery and failure to submit criminal case due to taking bribery also constitutes the crime of taking bribery or the crime of Engaging in Malpractices for Personal Gain and Failure to Submit Criminal Case, joint punishments for several crimes shall be imposed on such situation. She argues that this idea corresponds not only with the basic principle that the punishment shall fit in with the crime, but also with the current criminal legislative spirits and development tendency in our country. Besides, she contends that neither does this viewpoint delete the content of for Personal Gain from this crime, nor violate the principle of forbidding double assessment, which will be more fit for satisfying the realization of criminal law objective.The fifth part of the paper dissects the different qualities of Failure to Submit Criminal Case committed by various subjects and differentiates this crime from other related crimes. This section attaches great importance to analyzing the differences and diving lines between this crime and the crime of Perverting Law for Personal Gain, the crime of Covering up, the crime of Indulging Smuggler, the crime of Indulging Criminal Behaviors of Manufacturing or Selling Fake or Inferior Merchandise respectively.