Research On Some Problems Of Judicial Cognizance Of Abusing Authorities

Article 397 of the Criminal Law of China has adopted a simple guilty stipulation on the crime of abuse of power.Although there are many judicial interpretations concerning the crime of abuse of power,the judicial practice still has great differences in the application of crimes of abuse of power.Based on this,the author combines the relevant theories of the crime of abuse of power with the problems existing in the specific work.In addition to the introduction,this article is divided into five parts,through the analysis of four cases,respectively,the main body of the crime of abuse of power,the crime of abuse of power to determine the result of the loss of non-material abuse of power and the crime of abuse of power to identify accomplices.Case is the precondition for the emergence and development of the theoretical research of criminal law.As far as the crime of abuse of power is concerned,there are highly controversial cases in four aspects: the subject of the crime of abuse of power,the crime of abuse of power,the result of the crime of abuse of power and the crime of abuse of power.The theoretical study of crime will have unusually important significance.The identification of the subject of abuse of power is a difficult problem in judicial practice.The main body of the crime of abuse of power in China’s criminal law is the staff of state organs.In the recognition of the staff of state organs,we can define state organs by virtue of the essential characteristics of the functions of state public administration.Organizations authorized by laws and regulations or entrusted by state organs can not become new state organs,but can only be regarded as quasi-state organs,and quasi-state organs can not be regarded as "authorized"."Or" entrusted "state power is entrusted to other organizations.Personnel who work in state organs through legal channels,as long as they are engaged in official duties,are in line with the subject of the crime of abuse of power.If entrusted by a state organ to perform official duties,as long as "entrusted" does not violate the law,the personnel engaged in official duties in the entrusted organization can be identified as staff members of the state organ.In terms of the determination of the crime of abuse of power,the most important thing is the definition of authority.The theory of power and responsibility unification helps to clarify the source of responsibilities.The abuse of powers can be examined in substance.The behavior mode of abuse of power crime is to perform duty intentionally and incorrectly.Whether it is beyond authority or intentionally not to perform duty conscientiously or intentionally,it belongs to intentional incorrect performance of duty.From an objective point of view,there is no absolute distinction between the crime of abuse of power and the crime of dereliction of duty.Therefore,in judicial practice,we should grasp whether the subjective aspect of the actor is intentional or not.How to identify the result of the crime of abuse of power is also a matter to be discussed.In judicial practice,the determination of the result of immaterial loss is easy to produce subjective arbitrariness,and the bad social impact is a typical immaterial loss.With the help of the analysis of the meaning of bad social impact,we can get the parameter criteria for identification.When the abuse of power causes "bad social impact",the index of "bad social impact" is decomposed into: the bad degree of abuse of power,the scope of knowledge,the quantity of negative evaluation and the degree of negative evaluation.The "serious threat to public safety" is a serious loss caused by the crime of abuse of authority.There are still problems of accomplice in judicial determination of abuse of power.The staff of non state organs can become accomplices of the crime of abuse of power,and can also be perpetrators.When a staff member of a state organ and a staff member of a non-state organ are convicted of an accomplice,if the criminal law stipulates that each of them has its own charges,according to the imagination of concurrence,and in principle convicts an accomplice of a more serious crime,if the crime and punishment are not compatible,they are convicted separately;when the criminal law stipulates that there are no corresponding charges for staff members of a non-state organ,they are con Crime of abuse of power is convicted.