Placed In Private Custody Staff Crime Laws Applicable To Explore

The crime of setting free the detained personals privately, regulated by the 400th item in Chinese Criminal Law, was a terribly serious crime of misconduct in office. It does not only endanger the usual activities of the judicial organizations, but also connive to the judicial suspects that are set free privately, the accused, or the criminals. Consequently, very bad social effect was caused. Meanwhile, the above mentioned action done by very few judicial officers made distrust to law from people, disregard to the authority that the laws have, shortage of belief and loyalty of laws, psychological unsafe from public, panic of the victim, and so on. Due to the very simplicity of the items, many disputes are caused for the present crime both theoretically and practically. The author tries to pout forward some opinions with the purpose of shedding some light on application of the present law in judicial practice through analyzing the evolution and componential parts of the present crime as well as the related dispute in theory and judicial practice.First , the author examines the origin of the present crime, the crime of setting free criminals in foreign countries, as well as the comparison of the regulations concerned with the present law in old and new Criminal Law. It is believed that the complete statement of the present crime should be "the judicial personnel set free privately the detained (including the place where they are detained and on the way they are detained) criminal suspects, the accused or the criminals on purpose".Then the author analyzes the elements that constitute the crime. Theoretically, there exist many issues such as the disputes on "the object of the crime of set free the prisoners privately, the issue of defining the standards of "person in prison", the arguments on the "functions" and the "identity" of main bodies, and whether the "indirect intentional" constitute a crime. The author has done detailed comparison and analysis, holding that the object of the crime should be the normal activities of the judiciary, that the normal monitoring activities that setting free of the prisoner in detention breaks should be an integral part of criminal justice, how to define the "detainees" in the object of criminals. The author believes the theory of "actual control" is more appropriate which emphasizes two points: First, a person suspected of committing a crime. Second, persons controlled by the judiciary. For the issue that the judicial officers privately acquits detainee who is in fact innocent, the author considers this should constitute a crime. Objectively, the behavior of privately setting free the detainees who are innocent must be abusing his power to release the detainees without authorization. The main body of the crime is a special subject, namely, the judicial staff. Facing the dispute of the criminal's "identity" and "functions", the author holds that the crime of smuggling in detention should be subject to a determination whether the subject of the crime has supervisory duties. But if the non-judicial staff who are entrusted with carrying out monitoring duties to set the detainees free privately, they will constitute the crime. The performance of this crime is intentional in subjective aspect, but the indirect intention should also constitute the crime.In the determination of the crime. Firstly, the author explores the upper limits of being criminal or non-criminal, holding that should be enough to form temporary smuggling crimes. Private setting free the detainees and illegal smuggling up bail procedures of the criminal suspects do not conform to the constituent elements of this crime, and should be held criminally accountable as other crimes.Then to distinct a few easily confused crimes, such as the crime of abusing power, escape by complicity, Commuting a sentence, parole, Occasional field of crime, bending the law, the crime of dereliction of duty making the detainees escape and so on, Indulge in smuggling, the crime of smuggling and other crimes.Finally, we will analysis pattern of the crime of smuggling the detention. The author considers that there is only one standard to determine whether it is perpetrators of this crime and attempted, namely, whether the smuggling was away from the regulatory authorities' actual control. The conduct of smuggling the detainees owing to bribery should continue to Implicated Offense, and the time detainees can not be deducted by the time of smuggling escape. Prior to the implementation of the revised Criminal Law, the author also discussed other issues on how to investigate the conducts of the criminal suspects and the defendant in violation of the law. The author holds that from the perspective that constitutes a crime, for the crime of dereliction of duty, officers can be punished by criminal duties.