A Research On The Subjective Aspects Of The Crime Of Abusing The Office

In this paper, by using a combination of historical research, comparative study, learningand applying the researches of psychology, philosophy and other disciplines, the historicalroots of the subjective aspects of the crime of abusing the office is revealed in depth; thesubjective aspects’ legislative provisions of it from the regions foreign countries and HongKong, Macao and Taiwan comprehensively is described; the subjective elements of it and therepresentative points of view of the Chinese mainland about it is analyzed deeply. It isconcluded that offence forms of the crime of abusing the office may be not only intent butalso negligence in accordance with relevant theories. Finally, in this article, it is also exploredpreliminarily how to identify the subjective respects of the crime of abusing the office injudicial practices.This paper is divided into four parts, and has put more than40,000words. Its maincontents are as follows:The first part, the subjective respects of the crime of abusing the office is overviewed.In the part of this paper, the concept of the crime of abusing the office is defined and itsfeatures are summarized. It is explored deeply from three parts of the ancient, modern andcontemporary. The legislative provisions about it are comprehensively investigated from civillaw countries, common law countries, other socialist countries, and Chinese Hong Kong,Macao, Taiwan. Their similarities and differences about the subjective aspects’ legislativeprovisions of the crime of abusing the office are compared.The second part, the subjective elements of the crime of abusing the office areanalyzed.In this part of this paper, the subjective elements of the crime of abusing the office aredivided into three parts, namely psychological facts, normative evaluation and the freedom ofwill. Psychological facts in this article are divided into the awareness element and theintention element which emotional factors are included into. Normative evaluation factors arethat according to objective conditions of a chance for the legal behavior, the perpetrator stillintentionally or negligently commits the offense, so the behavior has subjective offence. Inview of the important position of the freedom of will, the freedom of will be regarded as anindependent component of crime subjective aspects. The third part, the offence forms of the crime of abusing the office are analyzedtheoretically.In the part of the paper, the representative points of view of offence forms of the crime ofabusing the office from the Chinese mainland comprehensively are analyzed deeply. Based onsummarizing the reasons of various points of view, the author points out the shortcomingsof the various theories. According to this, the offence form of the crime of abusing the officemay be direct intent or indirect intent, also be overconfident negligence, and thecorresponding legislative suggestions are recommend.The fourth part, subjective offence forms of the crime of abusing the office are judiciallydetermined.In this part of this paper, author puts forward that in the judicial practice identifyingoffence forms an objective, comprehensive and theory with practice general principle must beadhered to. Systematic, historical interpretation and other methods are used comprehensively.Based on this, identifications of intentional crime of abusing the office and negligent crime ofabusing the office are specifically expounded.