The Subject Of The Crime Of Dereliction Of Duty Should Be Judicial Standard

Since 18 th CPC National Congress,our country has entered the phase of high pressure against corruption, it also become the new norm for political work in the future. Followed, malfeasance crime investigate whether from strength, quantity and level, has drawn the attention of the world. In judicial practice, however, involves the subject how to accurately define of malpractice which one of the most important elements of a crime, we will find that the provisions of the laws and regulations on malpractice subject imperfect: criminal law’s theory of “identity”, demand status must be “The personnel of organs of state”, and what is “The personnel of organs of state”? There was no clear definition of law. Some judicial interpretation is aimed at a specific guidance to the case or type case,but in some special cases, whether that person has the identity of the staff members of state organs, there is still no strong operational guidelines. From practice and law, theory of forest, in the absence of clear, can not direct judicial practice of malfeasance crime legislation, in accordance with the procedures for instructions step by step, discussion, cases of long course of legal proceedings, judicial efficiency is difficult to achieve, inefficient “justice” is difficult to talk about true justice. Marxist philosophy thought, decision theory, theory of reaction in practice. Article expectations of malfeasance main-body standard, from the perspective of facilitating the judicial practice, combined with the legislative trend and the social status quo, combing the cognizance of malpractice subject ought to be standard, for our country’s anti-corruption struggle to provide important theoretical and practical support. In summary, this paper mainly divided into the following four parts:The first part, by looking at the malpractice of the legislation history of the subject, detailed interpretation of the current legislation and judicial interpretation of the subject range, fully understand the main body in malfeasance according to that law.The second part, in judicial practice that exist when objections are typical malfeasance crime subject hard cases as the breakthrough point, put forward the legislation and judicial practice of malfeasance, identified in the scope of the difference among characteristics and the cause of the main body to expand exploration of malpractice.The third part, the paper expounds the cause of the main body in malfeasance judicial cognizance. From the perspective of easy to guide the judicial practice of our country main standards of the existing of malpractice. The author thinks that the deficiency of legislation, the limitation to the legislative interpretation, judicial interpretation standard is not unified, “the personnel of organs of state”and “state functionaries”within the scope of the relevant existing provisions have identity.The fourth part,the main meaning of the crime of dereliction of duty as the starting point,analyzes the academic theory of “identity”, “responsibility theory” and “theory of identity and responsibility theory”, combining the situation of our country about the malfeasance of the legislation history of the subject, and the judicial practice, exploring the main trend of legislation. This paper, first of all, the existing legislative and judicial interpretation as a legal and reasonable operating standards, in addition, the existing legislation did not give clear guidance of special circumstances, should be to have a clear legislative definition of scope of “state functionaries”as the main body of malfeasance, at the same time with “responsibility theory”point of view as the main standards.