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On The Mens Rea Form By Article 397 Of The Criminal Law

Posted on:2017-06-16Degree:MasterType:Thesis
Country:ChinaCandidate:C WangFull Text:PDF
GTID:2336330488972642Subject:Criminal Law
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In 1997, the advised criminal law separates the power abuse of civil servants which causes some harmful consequence from dereliction crime to makes it an independent crime and stipulates the power abuse with dereliction crime in the same article. Under the circumstance that subject, object, statutory sentence and consequential offence of constitution are the same and that objective behavior is inextricably involved, the difference of mens rea form becomes the main target for the academia to tell from those two crimes. In accordance with traditional mens rea form theory, in terms of mens rea form, it is generally considered that power abuse is deliberate and dereliction crime is negligence. However, with comprehensive analysis of those two crimes, it is found that the definition of single mens rea form is one-sided not only in theory but in juridical practice. The academia put with theories of “compound mens rea form theory”, “main fault theory” and “strict liability theory”, which all have problems that are difficult to overcome in some degree. Based on the above, this thesis, on the basis of characteristics of two crimes, combine the analysis of relevant theories, trying to break through traditional fault claim that “one crime is composed of just only one mens rea form”, advocating two crimes can be composed of both deliberation and negligence, but are still mens rea form in final jurisdiction and a choice of deliberation and negligence, namely “comprehensively selective mens rea form”, and considering that definition is reasonable in terms of theory and vialbe in terms of practice.This thesis is composed of four parts with about forty-three thousand words.The first part is to raise problems. It is mainly to introduce relevant contents of traditional fault theory, definition of two mens rea forms and theoretical and practical difficulties that definition is faced with. In accordance with traditional fault theory, it is generally considered that the mens rea form of power abuse is deliberate and that of dereliction crime is negligence. That single definition of mens rea form does not fit crime and punishment in theory, is not coordinate with criminal law Article 397 Item Two motive of “favoritism” and conflicts with the explanation of legal malpractice in food supervision. What's more, that definition is not accord with status in quo of objective jurisdiction that two crimes can be committed both deliberately and out ofnegligence.The second part is to sum up theories. It is mainly to introduce the status in quo of theories about mens rea form of two crimes put up with by academia and select some representative theories, including the power abuse mens rea form of “single mens rea form theory”, “compound mens rea form theory”, “main fault theory” and “strict liability theory”, and dereliction crime mens rea form of “single mens rea form theory” and “selective mens rea form theory”. Based on the introduction of kinds of theories, it sums up definitions and reasons of mens rea form of two crimes in terms of all theories.The third part is to analyze problems. It is mainly to analyze reasons of disputes in academia and give comments in some degree, specifically including three aspects: firstly, standard to define mens rea form is different. The choice of a specific standard will affect the identification of mens rea form. Secondly, the comprehension of corresponding principles of crime and punishment is different. The way of using corresponding crime and punishment to speculate mens rea form neglects the identification of mens rea form and cannot justify itself. Lastly, legislation is vague and jurisdiction is diverse. The status in quo of legislation and jurisdiction causing the difference among academia does not represent that legislation has problems and jurisdiction has erroneous judgment. Whereas, that shows that the mens rea forms of two crimes are not single and respecting the status in quo of legislation and jurisdiction is the right way to solve problems.The fourth part is to solve problems. Through analysis of relevant theories, it sums up that “single mens rea form theory”, “compound mens rea form theory”, “main fault theory”, “strict liability theory” and “one-sided selective mens rea form theory” has some drawbacks or shortcomings. Based on that, the writer thinks that two crimes can be composed of both deliberation and negligence, but are still mens rea form in final jurisdiction. That “comprehensively selective mens rea form” not only is accord with other criminal law system and principle in terms of theory, but is embodied in legislation and proved with actual cases in jurisdiction.
Keywords/Search Tags:The Crime of Abuse of Power, Dereliction of Duty, Mens Rea Form, Compound Mens Rea Form, Selective Mens Rea Form
PDF Full Text Request
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