Criminal Law 397 Controversial Issues Research

Article 397 in Criminal Law is the most controversial article in the SpecialProvisions in Criminal Law. There are two reasons of making this judgment. Thefirst is that there are many disputes above Article 397. The second is that thereare huge numbers of standpoints on these disputes. Making research on thesedisputes, and therefore finding resolutions to them will not only have significanceto the implementation of Principle of a Legally Prescribed Punishment for aSpecified Crime, thus helping judicial departments to correctly apply the law andpunish research on basic criminal theories. This thesis, in the perspective of basiccriminal theories, comments on and expounds the mair viewpoints towardsArticle 397 in Criminal Law in the respects of criminal subjects, forms of fault,'heavy losses'.Concerning the criminal subjects in Article 397, the present Criminal Lawchanges the criminal subjects of Abuse of Authority Crime and Neglect of DutyCrime from State Personnel to Country Staff. This thesis firstly analyzes theboundary of State Personnel. There are three viewpoints on this question. In mypoints of view, State Agency should includes State Power Institution,Administrative Organ, Procuratorial Agency, Judicial Organization, Armed ForceInstitution and all levels of Institution of Communist Party of China. StateAgency is the working space of State Personnel, be engaged in official businessis the essential characteristic of them. Be engaged in official business is thestandard of judging a State Personnel. From the judicial practice, besides StatePersonnel, there are so many behaviors of Abuse of Authority and Neglect ofDuty exist in the Country Staff community. And these behaviors always cannotbe investigated. Therefore, in my opinion, the criminal subjects should bechanged to Country Staff.There is no clear instruction of the forms of fault in Article 397, so this partbecomes the most controversial question. As to Abuse of Authority Crime, thereare Result Intention Theory, Behavior Intention Theory, Negligence Theory andCoexists Theory. As to Neglect of Duty Crime, there are Negligence Theory,Indirectly Intention Compound with Negligence Theory, Intention Compound with Negligence Theory. This thesis analyzes this question from three aspects,firstly, the psychological manner of violating the responsibility duty, secondly,the psychological manner of heavy, losses, thirdly, the standard of judging theform of fault. Form the analyses above, we can make a conclusion that the formsof fault of the two crimes are both negligence.As to the heavy losses, the Supreme People's Procuratorate has made 6judicial interpretations ever. The presently used is the Stipulation about theputting on record of dereliction and right infringement cases made by SupremePeople's Procuratorate on July26, 2006. The new Stipulation has made greatprogress on heavy losses, for example, adding the standard of directly economicloss of personal property, adding the indirectly economic loss, adding the equalcomputation, and making clear about the time boundary which the lossrecognized.