A Study On Cognizing State Personnel In Malfeasance

After the modification of the Criminal Law in1997, one unsolved problem is how to cognize state personnel in malfeasance. This has caused consequences. On the one hand, malfeasance with heavy social costs frequently occurs. On the other hand, judicial officers hesitate on cognizing state personnel. As a result, the punishment for malfeasance is not put in full swing and the value of such punishment not publicized.Against the background of reform, many working staff who are not state personnel in reality perform the duty of state personnel. Can they be cognized as state personnel? From the original intention of legislation and definition of the words, they cannot be state personnel in malfeasance. Yet in practice, some of them were cognized as state personnel through law-explaining. Nonetheless, the current practice is not enough to deal with the diversified real life. What’s more, the practice itself in not on solid ground. In this era when suppressing malfeasance has become common sense of anti-corruption campaign, it is meaningful to pursue solutions for this problem.Even though there are some rationality in recognizing state personnel by its definition, I argue that the connotation of the phrase "state personnel" should be understood by its connections with power and responsibility of state organs. This connation specifies the specialty of the subject of malfeasance.In malfeasance, the element of state personnel is the concrete demonstration of its core character. It includes special element and capable element. The special element is comprised by the duty of state organs and the correspondence between the duty and the persons who undertake the duty. These elements are objective, collectively demonstrating the specialty of state personnel in malfeasance.The objectivity of the special elements in terms of state personnel in malfeasance defines the ordering of convicting malfeasance. The duty and power of state organs are historic and in changing, having universality and locality. The duty of state organs, the correspondence between the duty and persons, are both crucial evidence and important method in convicting malfeasance.