A Study On The Subject Of Crime Of Malfeasance

In the current anti-corruption efforts more and more tough rule of law,the study and exploration of this aspect of duty crime has become one of the focuses in the dual field of practice and academia.Accurate grasp of the crime of duty will greatly enhance the efficiency of the handling of judicial practice,but also within a certain range to combat the crime rate of duty crime,in order to effectively protect the interests of the state and the people from illegal infringement.The content of this study is the recognition and understanding of the dereliction of duty.From the provisions of the provisions of the criminal law can be seen that the crime of the main body of the crime in the state organs engaged in the work of such personnel,such personnel in the work did not properly use their own hands,or did not fulfill their own work,but also Or in the supervision of state affairs,there is a great deal of negligence,so that the legitimate interests of the state and the people are seriously unlawfully damaged.At present,there is a great debate in the practice of certain aspects of the crime of malfeasance,which gathers in how to correctly identify the subject of the crime.The existing legal provisions criminalize the subject of the crime in the context of the "State organs staff",and this concept,although the Supreme People's Procuratorate made it clear in a document in 2006,The extension of the scope of this subject,so that both the practical community or the academic community has not yet formed a unified understanding of the characteristics of the norms,the academic community of its connotation of the job theory,the theory of identity theory,legislation Interpretation and judicial interpretation and two high-profile cases are based on job theory rather than identity theory.But in the specific practice of how to accurately identify the connotation of the characteristics still have a lot of disputes.At present,the ecological environment of our country is becoming more and more serious.Under the current policy of building beautiful China,the state has given some economic compensation and classifies all the collective forest as national ecological public welfare forest,and collects the forest workers who are collectively employed by the forestry bureau.It is of great significance to study how such a person's dereliction of duty should be qualitatively applicable to the judicial practice in the case of the failure to perform the duties or the improper performance of the duties caused by the deforestation of the ecological forest.This paper takes Chen Guanhuang and Qiu Ruhui as the example of the criminal law of the dereliction of duty as an example.From the concept and basic characteristics of the staff of the state organ in the subject of the crime of dereliction of duty,the definition and evolution of the subject of the dereliction of duty in accordance with the existing laws and regulations,Adhere to the academic and practical circles of the concept of integration with each other,from the selected cases as the starting point,focusing on the "administrative organs commissioned and on behalf of the organs of the organization in the implementation of official affairs" specific meaning,trying to deal with judicial practice Similar cases to provide reference,but also look forward to promote and improve the relevant legislative and judicial interpretation.This paper is divided into four parts:The first part is the basic case of the selected case.First of all,the case should be introduced,and then the qualitative question of this case to be explained,there are two different views,respectively,for the innocent and set off duty,the controversial point of origin from the crime of malfeasance "state organs staff " The meaning of how to understand,especially in the current judicial and legislative interpretation of the "commissioned by the exercise of public officers," the specific meaning of the debate.The second part is the legal analysis of the relevant issues,this part is specifically divided into four levels to discuss:First,a brief description of the significance of the study of the main body of the crime of malfeasance and the development of the subject of the crime itself.Describes the legal and legislative interpretation of the subject of dereliction of duty defined demolition process.Second,the "state organs staff" legal characteristics of the identification.The theoretical circles have different theoretical arguments about the characteristics of the staff of the state organs,and have opinions on the different aspects of identity,property and business.On the basis of the relevant laws,legislation and judicial interpretation and the principle of jurisprudence,the author analyzes and analyzes the legal characteristics of the subject of dereliction of duty,that is,this kind of characteristic contains the following characteristics: Two aspects,it is necessary to have a certain qualification(that is,with the appropriate identity)but also engaged in public administration with the official duties,and analysis of this "identity" to obtain the way.The third is to study and analyze the "entrusted to engage in public servants" to become the main body of the crime of dereliction of duty.The first description of the state organs of the concept and scope,followed by the discussion of such personnel in order to meet the main elements of the crime of malfeasance,it is necessary to have some basic elements as the premise: the first must be a state organ;followed by such acts The organization of the specific work of the organization must be entrusted by the state organs;Finally,the perpetrator must be delivered in accordance with the responsibility of the organization on behalf of the commission of the state organs to exercise their duties,three aspects of the requirements are indispensable.Fourth,the forestry bureau and the collective forest owners signed the nature of the management of national ecological forest contract.First of all,"national ecological forest" for analysis."State-level ecological public welfare forest," the owner of the forest and the user is often separated,this paper should be based on the different owners of different forest identified.In the collective forest,the collective management of ecological public welfare forest,not in the exercise of national administrative authority,but with a certain social welfare,can not be determined by the collective hired rangers in the exercise of administrative rights.In addition,it is concluded that this contract is not a contract of administrative power,and the duties of rangers guarded by collective organizations are not engaged in official duties.The third part is the analysis of the selected cases.This part of the combination of the aforementioned legal analysis,the dispute case two defendants do not meet the main elements of the crime of malfeasance.The contract between the forestry bureau and the county government is not the administrative power of the contract.The defendant's duties are not the civil service required for the crime of malfeasance.The deforestation in this case does not belong to the property of the state,so the two defendants are not In line with the state organs have a certain work of public officials,rural collective organizations are not state-owned institutions,that the behavior of the two should not have the nature of the crime,so the two defendants are not guilty.The fourth part is the inspiration of this case study,in order to prevent judicial practice due to the construction of beautiful China,the protection of environmental pressure such as the guilty of such personnel,the proposed two high judicial interpretation,or case guidance,clear by the collective hire rangers to the collective All state-level ecological public welfare forest forest mourning dereliction of duty does not constitute the crime of malfeasance.It is also recommended that the mainbody of the crime related to the crime of obstruction of the company and the enterprise should be expanded to expand the main body of the crime to all the employees of the company,enterprise and public institution,not limited to the state staff.