On Crime Of Dereliction

The crime of dereliction is a form of expression of corruption committed by officials, which causes serious offense against social order. Therefore, it has been regarded as one of the main objectives in the penal system for countries all over the world. China Criminal Law 1979 has already stipulated the crime of dereliction in explicit terms, and during the revision to the Criminal Law in 1997, some changes have been made concerning the legislative mode and detailed provisions of the crime. The author of this thesis proposes to perform further discussion the crime of dereliction based on the legislative stipulations of the Criminal Law 1997. The main content of the first part is about the concept of the crime of dereliction. The lawmaking of the crime of dereliction in our country goes so early as primitive society when the behavior of the crime of dereliction was punished and cured. From this we can see the rulers in the past all value the lawmaking of the crime of dereliction, but speak essentially from the nature, these provisions are both reactionary and for the ruling class. The first penal code in china promulgated in 1979, the 187 regulation rules from the department's penal code are,"Any national stuff member, because of the crime of dereliction, causing public property, the benefits of the nation and people to suffer great loss, will suffer the following imprisonment for a specific term of five years or perhaps imprisonment."But with the increasing development of the merchandise and market economies, the variety of commiting the crime of dereliction becomes more and more increasingly. The penal code in 1979 cannot guard the demand of the commitment of the crime of dereliction in real life. Therefore, the lawmaking organization executes criminal the method to guard the offense to take into the additional regulations towards the crime of dereliction through a list continuously since 1982. At the same time, the judicial organ also guards the offense to make a series to explain towards the crime of dereliction, making explanations to release to the offense's corpus on the one hand, on the other hand, inducing for 64 kinds of concrete behaviors of 13 aspects about the crime of dereliction. The second part concerns the analysis of the composing characteristics of the crime of dereliction. After the new penal code was promulgated, the scholars have different understanding about the body of the offense, two main standpoints are included, one is simple body, the other is complex body. The writer thinks it should be the latter the crime of dereliction not only infringes upon the normal activities in the national organization, but also infringes upon human body right of the citizen, the property right, public property safety, and the socialist market economy order, etc. Concerning the objective aspect of this offense, the main performance comes from two aspects. One is that the staff member has the behavior of committing the crime of dereliction, the other is that the staff member's behavior causes public property, the benefits of the nation and people to suffer great loss. Both of these must depend on each other. The penal code in 1979 provides the corpus of the crime of dereliction are national staff members, and a further rule in the method's article 83, the national staff members mean the whole national organization, business enterprise, the business unit and other personnel who is engaged in the official business according to the law. But with the gradual building up of the market economy system, our country is at first the planned economy system under political nation for core of social structure of a dollar toward a change of political gradually and society keep both of two dollars social structure, in order to adapt this variety, the penal code in 1997 designates the corpus of the offense as the national organization staff member, and rule the opposite and heavy penalty, but make others who are not national staff members dispersed in other chapters, and rule the lighter penalty. The aim of such modification isto emphasize the responsibility of the national staff member, so that the stroke strength of the crime of malfeasance can be enlarged. However, the contract of the corpus scope of the crime of dereliction makes the judicial organ meet a series of difficulties in handling a case practice. Exactly because of penal code concerning the corpus scope definition of the crime of dereliction undefinite, prohibition occurs when judicial organ pursues the crime of dereliction, the direct influence judicatory practice the result that win law's usage. Under the push and appeal of handling a case, the superior judicial organ adopted a series of emergency measures to make extended explanations about the corpus problem of the crime of dereliction. This explanation brings the following four personnels into the offence scope of the crime of malfeasance: the first is the non-national organization with law authorization and exercise the administration management in some realms; the second is during the organization reform, some places adjust the original national organizations as the business units, but still reserve the working talent that it exercises some administration management; the third is that some organizations entrust the job power that they exercise by law to some other organizations; the fourth is that some organizations, according to their specific situation, employ some workers who do not belong to national organizations. The explanation extends the administration scope of corpus offene, although to a large extent made up the penal code the blemish of the provision, also it caused some explanation problem in theory. Namely: Whether do the new four personnels belong to the category of national staff member? Whether are the corpus scope of the crime of dereliction still the national staff members? The writer thinks that the concept of "national organization staff member"should have the stability, should not change at will, should limit to five staff members of the big and national organizations strictly. But the corpus of the crime of dereliction should have the modification from "national organization staff member to official business personnel".Concerning the subjective fault of the crime of dereliction, the penal code circles have been controversy. The writer thinks that the subjective fault form of the crime of dereliction not only includes the mistake, but also includes the indirect intention, but direct intention is not included. The mistake can constitute the crime of dereliction, which has become the hard conclusion, it needs unnecessary details no longer. From the law explanation in theory, the writer thinks, to inquiry the idea, people can not limit at the traditional law theories, even cannot tie down the original meaning by the law maker at that time, but should pay attention to specially to agree with practice. In practice at present, the staff member knows perfectly that they take no responsibility seriously, the behavior of the nonperformance job cause to endanger the result but deviate from the job to guard. Thus causing the phenomenon of the serious result have already been noticed so often. Either from the practical need or analyzing from the penal code theories, the indirect intention can constitute to play the crime of dereliction. The third part is relevant to the judicatory affirm about the crime of dereliction. In this part, mainly analyze the crime of dereliction with the boundary of the non-offense, the crime of dereliction with the boundary of the other offenses, the crime of dereliction with the boundary of an economy of other crime of malfeasance and the judicatory affirm of all crime of dereliction. The writer thinks that at affirm to play together it with the behavior person pertaining to crime responsibility should follow such principles: the crime of dereliction of the behavior person dinstinguish the independence to come out from the crime of dereliction of the behavior, the person plays together it , then according to penal code concerning it of provision affirm that each one play respectively the crime of dereliction of the behavior person whether composing it . Part four concerns the lawmaking blemish and lawmaking modification of the crime of dereliction. The penal code in 1997 made significant...