A Comparative Study Of Article 168 And Article 397 Of The Criminal Law

Article 168 of the Criminal Law:"The crime of abuse of power by state-owned companies,enterprises and institutions,',“The crime of dereliction of duty of state-owned companies,enterprises and institutions”and Article 397“Crime of abuse of power' and“crime of negligence”belong to the state staff.The crime of dereliction of duty,and the criminal form between the two laws,that is,the relevant crimes,is also very similar.By comparing and interpreting the two laws and related laws and regulations,it is found that the criminal subject“state-owned company,enterprise,institution personnel”of Article 168 is in special circumstances of“goverming according to laws and regulations”or“trusted by state organs' to engage in official duties.It overlaps with the crime subject "State Organs Staff" of Article 397,which in turn creates a law-contracting relationship and brings difficulties in the application of the law.Article 168 The boundary between the "administrative ana public welfare institutions" in the criminal subject and the criminal subject "national organ staff" in Article 397 are vague,and people's misconduct against the administrative and public welfare institutions Serious differences in the understanding of nature are the main reasons for the difficulty in competing for the law and applying it.The comprehensive application of the "powers entrusted to exercise is limited to administrative authority","administrative entrustment must be standardized and effective" and "obey the direction of the reform of public institutions" can better guide the application of the two laws.Although there are difficulties in the co-opetition and application of the law in special circumstances,but with regard to the protection of different legal interests and the understanding of the boundaries,Articles 168 and 397 should not be merged.In order to highlight the legislative intent and accurately apply the law,the title of the uworker,of the criminal subject of Article 168 and the expression of“serious irresponsibility”in the crime shall be amended,and the criminal subject of Article 397 shall be expressed as“the state organ Official staff" Under the background of the reform of the national supervision system,m order to effectively achieve full coverage of the supervision of all persons exercising public power,the Criminal Procedure Law should link up with the Supervision Law and relevalt provisions,and clearly stipulated that the relevant charges in Articles 168 and 397 of the Criminal Law shall be under the unified jurisdiction of the Supervisory Commission.