Research On Judicial Cognizance Of The Crime Of Abuse Of Power

Abuse of power crimes is a relatively special type of crime in criminal law and criminal procedural law.It is more theoretical and professional than ordinary criminal crimes.The jurisdiction for the investigation of crimes of abuse of power belongs to procuratorate agency rather than public safety agency.It was once a form of prosecutor's office to investigate criminal cases on its own.At present,the right to investigate is gradually being handed over to the supervisory commissions.The crime of abuse of power is a kind of duty crime,which directly infringes on the normal management behavior of the state organ to the country and the society,significantly affects the credibility of the government,and has a tremendous destructive effect on the normal operation of the state public power.In the judicial practice,malfeasance crimes are more specialized,technical,and theoretical than the general criminal offences.The judicial determination is far more difficult than the common criminal crimes such as theft crimes,injury crimes,and drug crimes.This article is based on the issue of judicial identification of crimes of abuse of power.This article started from the judicial practice,combined with the case of the identification of crimes of abuse of power,using the three-level crime criminal system of German criminal law.This article mainly uses case analysis,systematic analysis,comparative research and other methods to explore the issue of judicial practice of abuse of power.It hopes to conclude from a perspective that is most practical and convenient for judicial practice,to conclude an effective method to confirm crime of abuse of power.The first part examines the identification of the objective elements of the crime of abuse of power.First of all,the subject of the crime of abuse of power is a special subject.To generalize the four main theories of the subject in the current academic world: the identity theory,the functional theory,the identity and the public service theory,and the new public service theory,It concludes that the crime of abuse of power should use the functional theory.It is appropriate to say that the identity of a particular subject is summarized as a person exercising the corresponding function of a state organ,and the judgment that the function has the nature of public power is carried out in the process of judging the subject of the crime of abuse of power.Then he discussed the determination of abuse of power,summed up different views of the academic community,and combined with the functions,believed that the abuse of power should be interpreted literally.Afterwards,discussing whether abuse of power can be a crime of inaction,that is,the problem of willful inaction and non-compliance with the legality of handling public affairs,according to the above explanation of abuse of power,through the use of abuse of power and dereliction of duty,compared with the case analysis,it is concluded that the abuse of authority can include inaction.Next,study the object of crime of abuse of power and the results of crime.Through summing up the single object theory and the complex object theory of the comparative academic circles,it concluded that the object of a crime of dereliction of duty should be the normal activity of a state organ and the trust of the people.The result of abuse of power should also be the normal activities of the state organs and the infringement of the people's trust.The consequences of the abuse of the power caused by the specific damage are the evaluation elements of the crime results.After that,it summarized the relevant viewpoints on the time standard,the scope of calculation,the calculation standards,and the actual identification criteria for the determination of economic losses caused by abuse of power.It was considered that the economic loss should be calculated from the time of creation to the end of the investigation right,and the property loss ‘has already Actually caused',it should be that under the premise that the economic loss does not negate the existing legal relationship,other ways of judicial relief have been unable to take effect,or expect that the other judicial remedies have become effective.At the end of this section,we discussed several theories about the determination of the causation of the crime of abuse of power.It is considered that the introduction of the legal conditional theory and the objective imputation theory to explain the causality of the crime of abuse of power are relatively reasonable.The second part studies the determination of the subjective elements of the crime of abuse of power.First of all,it compares the various opinions of the academic community on the crime of abuse of power,and combines the above discussion of the results of dereliction of duty,concludes that the crime of abuse of power is intentional.The subsequent discussion of the need for knowledge of the consequences of damage is not necessarily discussed.The third part studies the justified constitutional elements and completion status of the justification of the crime of abuse of power.First,it discussed how civil servants' enforcement of order behavior would prevent from illegal activities,and then discussed the situation of lack of expectation of exemption from the crime liability.Finally,it considered that the abuse of power should only pursue the completion form.