Research On The Agricultural Duty Crime Puzzling Problem In Judicial Practice

With the rapid development of economic construction in our country, the support policy in rural areas by our country, and the increasing investment year by year by the central and local government on the rural construction, the investment of the huge public property is causing agricultural duty crime which is inclined to be increased year by year. Effective measures must urgently be mapped out to curb the rural grass-roots organization personnel duty crime problems, and the seriousness of the agricultural crime has affected the stability of the society. On the basis of summarizing the research achievements of scholars in our country, this paper combines the problems encountered in the judicial practice with the specific cases, and analyzes the application problem of act rules and related laws affirming the agricultural duty crime, and puts forward views in dealing with such problems with the purpose to play a positive role on legislative and judicial practices.This paper includes three parts:the first part begins with the concept of agricultural duty crime and the present situation of the agricultural duty crime at the present stage in China, and analyzes the double harm the agricultural duty crimes exert on the rural grassroots social stability and the images of China’s ruling party, which then leads to the meaning of agricultural duty crime judicial cognizance. The second part discusses differences of the subject the agricultural duty crime in terms of the theory and practice, which includes the cognizance basis of the agricultural duty crime subject, and argues whether the rural collective economic organization members belong to the main body of agricultural duty crime, such as the member of the villagers group and the subordinate committee of the village committee, the financial personnel of the rural organizations at the grass-roots level and the rural economy associative union etc., and whether the related behavior of rural grassroots organization members have the subject qualification to assist the government to manage and decide the agricultural duty crime. Organizations in charge of the village economic activities such as the village party branch, villagers committees and the rural economy associative union, economic cooperatives and agricultural-industrial-commercial combined enterprises etc., the subordinate committee of the village committee, villagers groups, and organization members at the grass-roots level such as the village committee cashier and accountant etc. that assist the administrative organs in engaging the management function under certain conditions, can all be positioned to "village grass-roots organization personnel" in the National People’s Congress Standing Committee’s Explanation of the Second Clause of Article Ninety-three of the Criminal Law of the People’s Republic of China. The third part talks about the existing problems in the duty determination of the agricultural duty crime, which includes the demarcation of the "village" and the "official" affairs, the definition of other administrative work and the cognizance of the rural grassroots organization members’assistance in the "public property" of the administrative work. In the process of the cognizance of the agricultural duty crime, whether the crime subject is engaged in seven works stipulated in Legislative Interpretation according to the law shall be taken as the basis to strictly distinguish the "village" and the "official" affairs, in the case that the boundary is not clear, the principle that the punishment fits the crime shall be determined based on the misdemeanor among several crimes violated by the criminal behavior in accordance with the principle that the doubt to beneficial to the defendant. The definition of the seventh item "other administrative work" in Legislative Interpretation shall take whether the related behavior engaged by rural grassroots members assist the government administrative management as the basis. In terms of behaviors beyond the assistance of the government management, the behavior of rural grassroots organization personnel cannot be identified as the agricultural duty crime. Only in the case that the rural grassroots organization personnel exercise the right to assist the government administrative management work on the premise of the authorization by laws and regulations or entrustment by the administrative organs, it can be affirmed that the rural grassroots organization personnel is exercising the right to assist the people’s government in the management work. In terms of the definition of "public property" in agricultural duty crime, the actual possessive subject of the property and the duty-bound possessive subject shall be analyzed to decide whether the property involved taken place during the stage that rural grassroots members assist the government management, if it still belongs to the duty behavior taken place during the assistance of the government in the management work, it shall be identified that the property involved has the nature of public property.