To Help Criminals Evade Punishment, Research On Controversial Issues

Article 417 of the Special Provisions of the Criminal Law of China clearly stipulates that a functionary of a state organ who is responsible for investigating and prohibiting criminal activities and provides information and convenience to criminals to help them escape punishment shall constitute the crime of helping criminals escape punishment.From the provisions on criminal activity "suppressed","national office working personnel","the informant,provide convenience","criminal",describes a crime for the provision,but with the continuous development of national politics,economy,culture,supervisory system and the judicial system and administrative system reform unceasingly,this crime legislation defects gradually highlights,so that the dispute in practice more,and even some of the different connection with the decision,it is necessary to clarify the situation which applies,the maintenance of the unification of justice.In addition to the introduction and conclusion,this paper is divided into four parts:The first part summarizes the crime of helping criminals to escape punishment,clarifies the concept and characteristics of this crime,and discusses the general constitutive elements of this crime from the perspective of four constitutive elements,and at the same time,distinguishes the difference between this crime and other related crimes.The second part focuses on analyzing the inadequacy of legislation to help criminals escape punishment.The legislative process and subsequent judicial interpretation of this crime,in fact,reflects the gradual improvement of this crime,but also to a certain extent,make up for the lack of legislation of this crime.However,due to the particularity of the legislation process of this crime,as well as the continuous reform of the mechanism and system of the state organs in reality,the inadequacy of the legislation of this crime is gradually highlighted.From the point of view of the subject of this crime,the definition of "personnel of state organs" is not clear,and the way of limiting the scope of the subject lags behind.The objective aspect of this crime is improperly expressed,and the expression of "criminal" in the provisions of the criminal law is inappropriate,and there is no clear expression of "taking advantage of the position".The third part focuses on analyzing the disputes in the judicial practice of this crime.This crime subject dispute,the author thinks that the state organs assistant staff,can constitute this crime,and the relevant personnel of the Commission of Supervision can also constitute this crime;In the dispute on the subjective aspect of this crime,the perpetrator of this crime does not need to know the harm result,and at the same time,the perpetrator of this crime knows or should know that the person being helped has illegal behavior,as to whether he knows that the person being helped has criminal behavior,it does not matter;In the dispute on the objective aspect of this crime,the "former case" is conditional on the case handling organ obtaining sufficient evidence to prove the crime,while the "escape from punishment" includes helping the criminal to reduce the criminal punishment.On the form of the crime,this crime to help the behavior to reach the object to be helped as the standard of its completion.The fourth part puts forward some suggestions on how to perfect this crime.The scope of the subject of this crime should be clarified,and the connotation of the subject should be clarified with "responsibility" as the main part and "identity" as the auxiliary part.It is suggested that it is more appropriate to change "the state functionaries who investigate criminal activities" into "the state functionaries who investigate illegal and criminal activities".The main body of the author suggests to "responsibility","identity" as a supplement to clear the connotation of the main body of the crime,and it is suggested that the Commission of Supervision personnel to investigate and deal with serious illegal cases applicable to this crime;There is the need to modify the objective aspects of this crime,one is to suggest that the "criminal" modified to be "investigated",a clear statement of the crime "to use the position",to avoid ambiguity.Finally,the author proposes to solve the various problems in the judicial practice of this crime through three ways:perfecting legislation,issuing judicial interpretation and issuing criminal guidance cases.