An Empirical Study On The Dilemma And Outlet Of The Application Of The Law Of Crime Of Dereliction Of Duty

Dereliction of duty,as a crime of power corruption,has caused huge economic losses,personnel safety accidents and serious social impacts.Compared with corruption crimes,the crime of negligence in society is more harmful than corruption.It has always been The focus of attention of the practical and theoretical circles.In 1997,when the Criminal Law was revised,the crime of dereliction of duty and the newly-added crime of abuse of power jointly constructed an independent chapter of the crime of dereliction of duty,but it caused academics to question the scientific nature of the legislation.Among them,the most prominent is the subject’s application restrictions,the dereliction of duty is unclear,the causal relationship is very complicated,the subjective crime is unclear,and the related theories and theories of the crime are complicated.The academic circle has not yet formed a unified caliber,and the legal application dilemma of the crime of negligence It is difficult to break through.This article through the empirical investigation and theoretical research on the crime of dereliction of duty,in order to solve the problem of law application of dereliction of duty.The full text is divided into the following four parts.The first part is the overall summary of the empirical study of the judgment.This paper selects 330 second-instance judgments of negligence in the four years from 2017 to 2020 as empirical research samples by comparison,and mainly elaborates the background and reasons for the selection of empirical samples.At the same time,through the overall statistics of the dispute focus of the second-instance judgment and the judgment result,it is preliminarily concluded that the crux of the legal application dilemma of the crime of negligence lies in the criminal composition of this crime.In the second part and the third part,the crime of dereliction of duty around the main elements of a detailed empirical analysis.Through a detailed study of the Judgment Book and Special Case Analysis,this article mainly draws several conclusions.First,the subject of crime of dereliction of duty has a high rate of application,mainly due to the expansion of legislative interpretation and judicial interpretation,as well as the dominant position of "public affairs theory".Second,the crime of dereliction of duty is not clear,identifying the problem of arbitrariness.In addition to the judicial practice of the application of the efficiency of the law,mainly attributed to the unique structure and special attributes of this crime increased the difficulty of the identification of this crime.Third,the identification standard of heavy loss needs to be improved.The general property loss is easy to identify,but the non-material heavy loss and indirect property loss calculation standard needs to be improved.Fourth,the definition of causality is mainly based on the judicial evasion of causality,confusion of cause and effect between fact and law,and misorientation of "multiple causes and one effect" as the basis of sentencing.Fifthly,it is found that the extension of subject qualification depends on the definition of official conduct,and the "two carriages" that conduct and major loss result are side by side cause and effect is the core of the cognizance of the crime of dereliction of duty.The fourth part,about the cause and effect determination of the crime of dereliction of duty.The theory of causality is rich and complicated.Through the introduction and reflection of the existing theories,the author finds that,conditional theory,contingent causality theory and equivalent causality theory can not provide the standard of causality for the crime of dereliction of duty at Operability level.Without denying that the condition theory plays the basic role of other academic theories,only the three levels of the objective imputation theory can properly solve the problem of proving the causal link of dereliction of duty,however,there still exists the suspicion of confusing attribution and imputation.The fifth part is the determination of subjective negligence in the crime of negligence.Since the text objected to confuse attribution with imputation,by introducing the old and new negligence theories in Japan,it was agreed that the essence of negligence is the violation of the duty of care.Starting from the possibility of foreseeing and avoiding the result,the determination of negligence cannot be resolved.