Research On Several Issues Of The Crime Of Smuggling Shackles

The crime of bending the law for selfish ends is the typical official misconduct, the high-prone and high-frequent one in criminal judicial practice.Although the criminal law of the People's Republic of China and the relevant laws has made certain regulation of the crime of bending the law for selfish ends, they still has lags. At the same time, lacking of specific judicial interpretation in judicial practice, coupled with disagreements in theoretical areas, will inevitably lead to controversial issues on recognition of the crime and other relevant problems. Therefore, on the basis of previous studies of this crime, I study further on controversial issues including the objective aspect of the crime, the subject of the crime, the subjective aspect of the crime, judicial recognition and legislative perfection and put forward my own understanding.In the objective aspect of the crime: Based on the the crime of bending the law for selfish ends is the typical official misconduct and consistency of style in the criminal law, the article advice the taking advantage of position is the essential element of the crime and should be reflected in the criminal law. Identification of criminal by standard of evidence,as long as there is evidence to prove that by protecting people constitute a crime in form, as for the protecting people will eventually be in accordance with the law of the people's court judge for the essence of guilty or not,it does not affect the actor constitute the crime of bending the law for selfish ends,which not only subjects to the goal of legal interest of criminal law protection but also have feasibility and operability in judicial practice; The prosecution of the crime should be the unified appellation of the judicial organ's different criminal lawsuit activity,embodied in the various stages of the criminal suit different functional activity, which contains filing and investigation of investigation organs, prosecution of procuratorial organs, criminal trail action of judicial organs and other coercive measures; The judicial personnel “more or less prosecution than reality” has social harmfulness and should be investigated criminal responsibility and suggested to be reflected in the criminal law; Non-action can constitute the crime of bending the law for selfish ends.In the subjective aspect of crime: "favoritism" and "partiality" meaning is joggled affair, self-interest; "favoritism" contains "individual" privacy and "units or small groups" privacy; "favoritism" and "partiality" belongs to the motive for the subjective aspect of the crime, not is the essential element. So it is recommended to be removed from the provisions of the criminal law; The crime can only be constituted by direct intention but not the indirect intention.In the judicial identification of this crime: Analyze issues of the crime and non-crime, the crime form and crime number.In the aspect of legislative perfection,in addition to the above suggestions,advice that :modify the “breach the fact and law” into “breach the fact or law” and add qualification penalty and property penalty to the kinds of criminal punishment.