| The crime of Engaging in Malpractices and Perverting with the law, whose origin was the crime of Engaging in Malpractices for Personal Gain provided by 1979 Criminal Law Code, is an accusation of duty offense revised in 1997. It has been one of the most harmful malfeasant crimes in judicial field and thus become important criminal cases investigated and handled by prosecutorial organs. However, due to legislative defects and judicial interpretation's delay, the crime has arisen much controversy both in criminal law theory and judicial practice, which has directly influenced the punishment level imposed by prosecutorial organs toward such crime. In this paper, the author will, partly by using his personal judicial working practice, make some inquiry into such issues as the constitution and judicial determination of Engaging in Malpractices and Perverting with the law in theoretical domain and legal practice. He hopes that this probing will be good for prosecutorial organs to investigate and prosecute this crime.Apart from foreword, main body of this article includes our parts, amounting to about 30000 words.The first part is about some problems of criminal subjects of Engaging in Malpractices and Perverting with the law. It mainly deals with the problem of whether those special functionaries, such as prison management staff, jurors and judicial sectaries, etc. can become the subjects of the crime of Engaging in Malpractices and Perverting with the law. Personally speaking, the writer believes that as long as they belong to judicial staff who are executing or have executed such power as prosecution or judgment, whatever their identity or status, they all can correspond with the subject requirement of the crime of Engaging in Malpractices and Perverting with the law.The second section refers to the subjective aspect of the crime. The author mainly brings forward his points of view about the issues of intentionally, full awareness, for Personal Gain, for human relationship. The author argues that the definition of intentionally shall be restrictively interpreted as only direct intention and the concept of full awareness shall include that relevant wrongdoer knew the objective impingedby his or her behavior and there was causation between his or her behavior and the consequence of such conduct. Besides, he contends that for Personal Gain and for human relationship mainly refer to for individual personal, private benefit or relations, and the interest of unit or sub-group concerned shall also be regarded as a kind of private thing. In addition, he proposes that for Personal Gain, as a part of constituent of the crime of Engaging in Malpractices and Perverting with the law, stands for the subjective motive of relevant criminal wrongdoer, but this is also an unreasonable regulation of the law.The third part of the paper expounds about the objective aspect of the crime. The author generally summarizes many kinds of manifestation form of this crime in objective aspect and he expressly raises that constituting this crime of duty offense must be that the wrongdoer shall take advantage of the convenience of his or her public position or the convenient condition brought about by his public position and social status. After analyzing the concepts of guilty person and non-guilty person, he thinks that the connotation of guilty person shall be that there has taken place some criminal offence and obtained evidence can show the offense has been serious enough to meet with the standard for investigating relevant cases at some stages provided by law. Moreover, he tries to make clear the concept of prosecution and expounds that prosecution is a criminal judicial activity to bring specific cases to court for someone's criminal responsibility. He also makes some research on the behavior of illegally initiating, abolishing and exchanging criminal compulsory measures, which, from his point of view, shall be regarded as a sort of criminal acts. Furthermore, he believes that conduct models of the crime of Engaging in Malpractices and Perverting with the law includes action and omission, and the conduct under omission model shall have caused serious consequence before it can be deemed as criminal act.The fourth portion of the paper is going to talk about judicial determination of the crime of Engaging in Malpractices and Perverting with the law. In conduct circumstance and criminal constitution, the writer proposes that the sole circumstance of Engaging in Malpractices and Perverting with the law committed by some wrongdoers shall not all be regarded as constituting the crime of Engaging in Malpractices and Perverting with the law since different conduct circumstances mayconstitute acquittal, serious crime and extremely serious crime of Engaging in Malpractices and Perverting with the law respectively. In order to differentiate this crime from other offense, the author, according to criminal constituents, individually sets apart this crime with the crime of Covering up, the crime of perjury, the crime of Perverting Law for Personal Gain in Civil and Administrative Justice, the crime of Fake Accusation for Frame-up and the crime of Retaliation by Frame-up, etc. In model of several crime, he proposes that the crime of Engaging in Malpractices and Perverting with the law can sometimes combine with the crime of Abusing Powers or the crime of Retaliation by Frame-up, under which circumstance the criminal shall be punished by a heavier crime. After some analyze, he concludes that when relevant criminal wrongdoers have both suspect of the crime of Engaging in Malpractices and Perverting with the law and the crime of Taking Bribery, this situation belongs to phenomenon of Legal Regulation Provisions Combination, rather than that of Criminal Involvement.Although the author does not outline the legislative suggestion about the crime of Engaging in Malpractices and Perverting with the law as an independent part of the essay, his main viewpoints has been expressed in those research on several specific problems. He points out that there is some manifest slip in the establishment of offense nature of this crime and the behavior that judicial staff makes heavier or lighter prosecution toward criminal suspects intentionally shall be regulated. On the other hand, he argues that the idea of regarding such subjective motive for Personal Gain and for human relationship as part of criminal constituent is not only theoretically groundless, but also has brought forward some problems for practical determination. As such, he concludes that this part is really unnecessary and, thus, shall be deleted. |
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