Study On Difficult Problems In Crime Of Breach Of Privilege

Crime of abusing the power was a newly charge of penal code in1997. The provisions ofthis sin is too brief in Criminal law，so a lot of controversy has emerged in judicialdetermination among the theoretical and practical circles. This paper selects several difficultissues as the focus of the study,including the definition of the subject, behavior of thiscrime,subjective sin, boundaries with dereliction of duty and quantity of crime in the case ofabusing power after accepting a bribe. In this paper, on the basis of the summary and analysisof the previous theory, I put forward my own opinion on these problems to make somecontribution to help solving the problems in judicial practice. Meanwhile, this paper also putsforward some of the flaws in the legislation on the crime and improving measures.This article has three parts.The first part introduces the legislative history of this crime. Throughout China’scriminal legislation, the crime of abusing the power experienced a long-term process from thefirst penalty by dereliction of duty to becoming a seperate crime.The second part is the main part of this article and discusses five difficult problems injudicial determination of crime of abusing the power.First of all, the subject of crime of abusing the power is the clerks in the nationalmechanisms according the Criminal law. But there are considerable differences on how todefine the subject among the scholars. These different viewpoints include the “status”theory,the “public affairs” theory, the “new civil service” theory and the “both of status andpublic affairs” theory. I think that “both of status and public affairs” can accurately reveal theconnotation of the clerks in the national mechanisms. The other viewpoints would beinappropriate because of broadening or narrowing the scope of the subject of this crime.In the second place, this article discusses the guilt conduct of the crime. As for theforms of conduct, there are two basic views on this problem. One viewpoint demonstratesfrom the literal meaning of "abuse", the distinction between the abuses and administrativeomission in administrative proceedings. However, this argument is one-sided and fails tograsp the essence of deliberately abandoning duty. Abstention what is failure to perform dutyshould be bringed into the crime of abusing the power as one guilt action of the crime. Thereare different views on type of the guilt conduct, such as “two types” theory,“there types”theory, and “four types” theory. Based on analyses about the pros and cons of the various viewpoints, this paper accepts “three types” theory and divides the guilt conduct intoimproper exercise of authority within the scope of the power, exercise beyond the authority,and deliberate failure to perform duty.Thirdly, there are five different viewpoints about forms of the subjective sin in ourtheorists. Among the different viewpoints,“Direct Intention of Crime” theory and “IndirectIntention of Crime” theory are not comprehensive,“Negligence”theory does not match withthe legislative intent on the seperate establishment of crime of abusing the power,“IndirectIntention of Crime or Negligence” theory violates the basic principle of Crime law. In a word,this article approves “both Direct Intention of Crime and Indirect Intention of Crime” theory.We should define the content of subjective sin as that the clerks in the nationalmechanisms know abuses will have harmful consequences to public property, the interests ofthe state and the people, they still hope or laissez-faire for the occurrence of the harmfulconsequences.Fourthly, scholars study distinctions between crime of abusing the power and crime ofneglect of duty around guilt conduct and subjective sin. This article argues that the differenceof the two crimes are mainly reflected in subjective sin. Crime of abusing the power isdeliberate crime and crime of neglect of duty is negligent crime.Fifthly, the clerks in the national mechanisms always accepting bribes while abusing thepower in practice. Scholars have put forward their own insights on conviction andpunishment. Based on the understanding of the crime of acceptance of bribes, I think that theperpetrator has implemented two crime acts and we should not solve this problem accordingto “implicated offense” theory. The crime of acceptance of bribes and crime of abusing thepower have equally serious social harm, so we should combine punishment for these twocrimes.The last part mainly discuss legislative perfect of the crime of abusing the power. Bymeans of which indicates some actual legislative defects in existing penal law and comparesand drow on the foreign legislation about the crime, it puts forward own legislativesuggestions about three facts. These are legislative structure and system, charge in anindictment, and legal penalty of the crime.