Analysis Of Bending The Law Crimes

Bending the law crimes as a high incidence of malfeasance crimes, is specifically set up for the judicial personnel, to regulate the behaviors which destroy the judicial justice in the criminal prosecution and the criminal judgment, aiming at regulating the judicial personnel' duty behavior, realizing the judicial justice. The analysis of bending the law crimes is helpful to clarify concepts in this crime and to find the gaps and loopholes in the law, so as to deepen the academic research to this kind of mistake and perfect the punishment system of criminal law.This paper is divided into three parts: the introduction, the body and the conclusion. The body covers five chapters respectively. The first chapter is an introduction of bending the law crimes, which analyses the characteristics of its legislative evolution and judicial practice. From the perspective of legislation, it's accusation, content and measurement of penalty have been changed; From the perspective of judicial practice, this crime is also a high incidence of crime in recent years but the courts have different ways to deal with it, there are many controversial points in this crime, so it is necessary to deeply analyze it.The second chapter analyses the subject of this crime, it covers the cognizance of the judicial personnel and the cognizance of accomplice, for the cognizance of the judicial personnel, it is appropriate to adopt the theory of responsibility, for the cognizance of accomplice, it is discussed in detail that judicial personnel and the other ones can be the subjects of this crime.The third chapter analyses the subjective factor which includes the character and content of “for favoritism” and “for partiality” and the relationship between them. It is held that “for favoritism” and “for partiality” should be regarded as the criminal motive in this crime, its content includes not only personal interests, but also includes the unit profit, and for the relationship between them, favoritism should include partiality.The fourth chapter is the most important part in this thesis. It concentrates on objective requisites of this crime which includes the type, the specific patterns of behavior and the judgment standard of bending the law. It focuses on three types of behaviors regulated in the first paragraph of article No. 399 of Criminal Law to analyze the type of bending the law, it analyzes the conceptions such as “guilty person”,“prosecution” and so on. For the specific patterns of the behavior, based on the concealment, it can be divided into four types: bending the facts and laws obviously, choosing evidence for confirming the facts selectively, utilizing the different understanding of proof standard to bend the law and using the reasonable explanation of law as a pretext to take the advantage of the loopholes in the law. In order to avoid some so called “lawful” acts bending the law, and on the basis of drawing lessons from domestic and foreign relevant theories, it is held in this thesis that the fact and the law and the value factors should be taken into consideration when studying about the standard of bending the law.The fifth chapter deals with judging the quantity of crime. When one' behavior can be convicted both of bending the law crime and bribery crime, he should be punished for both crimes too, it is appropriate to combine punishment for both crimes, not just any one of them. Thus, the provision of the fourth paragraph of article No. 399 of Criminal Law should be deemed as a special provision, it may not apply to the situation which one' behavior can be convicted both of bribery crime and other malfeasance crime.