Judicial Determination Of Administrative Power Organization In The Criminal Law

According to the different objects protected by the law,the criminal law divides the crimes of dereliction of duty of state organs and the crimes of dereliction of duty of state-owned company staff,and stipulates the difference between in terms of crime subject and criminal object.However,in practice,some state-owned companies still bear the power of state administration,and there are still disputes in theory and practice about how to convict such company personnel when they are suspected of malfeasance.In response to the above problems,the judicial interpretation of dereliction of duty(1)seventh terms in 2012 clearly states that the organization staff members who are legally or entrusted to exercise the functions of state administration should abuse their powers and neglect their duties when exercising state administrative powers.The staff's misconduct crimes have unified the theory and practice of the problem,and it has a strong theoretical and practical guiding significance.However,because the explanation does not explicitly define the benchmarks for the organization of state administrative functions according to law or entrusted,there are still many differences in judicial practice on this issue.Starting from the specific case,it reflects the following disputes arising from the judicial interpretation of the judicial apprenticeship of the state-owned company in the process of handling the case of dereliction of duty of the state-owned company(1): First,the existence of the organization of the state administrative authority There are two different views on the "property of nature" and "the nature of property plus management".Second,there is a different understanding of the validity of the two types of administrative authority.Under the premise of refuting the existing doctrine,through the analysis of relevant legislative interpretations and judicial interpretations,it is proposed to take official duties as the basis for the establishment of the state administrative authority,and then divide the official duties into government official duties and social official duties.The government affairs and social affairs that are exercised by the state organs are the official duties formed by the state through the compulsory means of supervising and managing the participants of social activities.At the same time,social public affairs are divided into external official duties and internal public affairs.The difference between the two is that there is no equality between the main body of external official duties and the participants of social activities.The main body of internal official duties is equal to the participants of social activities.Equality is reflected in the exercise of the subject.The social affairs related to official duties are divided into external affairs and internal affairs.It is clear that the internal affairs in internal public affairs and social affairs in social official affairs are different in that they are qualified to exercise administrative powers.After the argument can be authorized by the normative documents,it is considered that the normative document authorization has effect to satisfy both the entity requirements and the procedural requirements.The entity requirements include the authorized subject to enjoy the authority granted,and the authorized subject may not be an individual.The authorized content can only be the refinement of the original authority shall not violate the prohibition of the law.The authorized object shall have the ability and qualification to exercise the authority granted;the procedural requirements shall include the authorization to be passed by legal procedures,and the authorization to violate the legal procedure shall be invalid.After affirming the reasonable existence of the second entrustment,the second entrustment is proposed to obtain the consent of the initial entrusting entity,and the entrusting entity including the individual enjoys the entrusted authority,the entrusted content does not exceed the scope of authority and the entrusted entity has the ability to exercise the premise that the entrustment is effective.