Study On Related Problems About The Subject Of Crimes Of Dereliction Of Duty

The subject of Crimes of Dereliction of Duty is strictly prescribed by the Criminal Law of the people's Republic of China in 1997 for"functionary of the state organs", which is not defined by the existing Criminal Law. So it puzzles the judicial practice and influences the unification of implementation of Law. On the basis of simply introducing the general description of legislation for the subject of Crimes of Dereliction of Duty, the paper reviews the extensive interpretation about the application of the subject of Crimes of Dereliction of Duty, which is made by The Supreme People's Procuratorate, The Supreme People's Court and the Standing Committee of the National People's Congress and makes a further inquiry into the legal characteristics of the definition"functionary of the state organs",further more, analyses whether the act of a person with "dual status"should be judged to be the status of functionary of the state organs, whether the state organs could be the subject of Crimes of Dereliction of Duty and the complicities of Crimes of Dereliction of Duty. Chapter one General Description of Legislation for the Subject of Crimes of Dereliction of Duty Firstly, the definition and characteristics of Crimes of Dereliction of Duty. Crimes of Dereliction of Duty is the crime of any functionary of a state organ abusing his power or neglecting his duty, thus causing heavy losses to public money or property or the interests of the State and the People. The characteristics of Crimes of Dereliction of Duty are as following: the object of Crimes of Dereliction of Duty is complicated one, and it infringes the state organs'normal activities and public property's safety and citizens'rights of the person. Objectively, Crimes of Dereliction of Duty represent the functionary of state organs abusing his power or neglecting his duty, and causing heavy losses to public money or property or the interests of the State and the People. The subject of Crimes of Dereliction of Duty is the functionary of state organs. Subjectively, Crimes of Dereliction of Duty are intentional ,negligent or both intentional and negligent. Secondly, evolution of legislation for subject of Crimes of Dereliction of Duty. Before the Criminal Law of 1997 is in force, there are three different viewpoints about the definition of subject of Crimes of Dereliction of Duty: the subject of Crimes of Dereliction of Duty is functionary of state; Crimes of Dereliction of Duty are not only for duty also for operation; the subject of Crimes of Dereliction of Duty is only for functionary of state organs. Criminal Law of 1997 strictly prescribes the subject of Crimes of Dereliction of Duty is functionary of state organs. Chapter two the Dispute Existed in Judicial Practice on the Subject of Crimes of Dereliction of Duty Firstly, commentary on legislation. The deficiency of legislation includes: the provision of subject of crimes of dereliction of duty has not prescribed the crimes of dereliction of duty of other functionary of state; there are many difficulties in execution for crimes of dereliction of duty because its strict restriction on definition; the subject of crimes of dereliction of duty is inconsistent with the actual subject of crimes of dereliction of duty; the provision of criminal substantive law is contrary of the one of procedural law; the existing criminal law has not prescribed what are functionary of state organs, which result in the confusion of judicial practice. Secondly, judicial and legislative activities promote extensive interpretation on the subject of Crimes of Dereliction of Duty. The Supreme People's Procuratorate, the Supreme People's Court and the Standing Committee of the National People's Congress give the extensive interpretation on the subject of crimes of dereliction of duty, which to some extent resolve some difficulties in judicial practice. Chapter three Basic Elements and Legal Characteristics of Functionary of State Organs The definition and characteristics of functionary of state organs are very necessary for judicial practice. Firstly, legal characteristics of functionary of state organs. the clear definition of "functionary of state organs". Currently there is not a clear definition of "functionary of state organs"in Criminal Law.Viewpoint of identity. Functionary of state organs must possess the identity of functionary of state organs. Viewpoint of official duty. Functionary of state organs must deal with the duty of state organs. Viewpoint of both identity and official duty. Functionary of state organs must possess the identity of functionary of stateorgans and must deal with the duty of state organs. The writer thinks the second viewpoint is reasonable in judicial practice. Secondly, legal characteristics of basic elements of functionary of state organs. By analyzing the two basic elements of functionary of state organs(identity and official duty), we can get such conclusion: functionary of state organs are the persons who get state organs'warrant in advance and deal with official duty of state organs in the name of state organs. At last, the prescription of extension for functionary of state organs. The writer's viewpoint: functionary of state organs are those persons who dealing with official duty in state organs or getting a warrant in accordance with the law or entrusted by state organs, and in prescribed work scope carry out the duty of organizing, guiding, supervising and managing state affairs, public affairs and social affairs in the name of duty. Chapter four Probe into the Dispute for the Subject of Crimes of Dereliction of Duty in Judicial Practice The writer's viewpoint: if functionary of dual identities commit crimes in carrying out official duty of state organs, then the crimes are crimes of Dereliction of Duty; if his criminal activities belong to company's or enterprise's official duties, then the activities are not Crimes of Dereliction of Duty, they belong to other crimes. The writer's viewpoint: as special juridical persons, being different from enterprise persons, undertaking unit persons and social group persons , state organs can not be the subject of Crimes of Dereliction of Duty. About Joint Crimes of Dereliction of Duty. The writer's viewpoint: Non-functionary of state organs can not be separately the criminals of Crimes of Dereliction of Duty for functionary of state organs, and they can not be the criminals of Joint Crime of Dereliction of Duty. Non-functionary of state organs, if instigating, organizing and helping functionary of state organs commit Crimes of Dereliction of Duty for functionary of state organs, whether his instigating etc. behaviors play a dominating role or subordinate role in Joint Crimes of Dereliction of Duty, the instigating etc. activities of non-functionary of state organs should be regarded as complicity of Crimes of Dereliction of Duty. If the masses can be the criminals of Crimes of Dereliction of Duty for functionary of state organs, then functionary of state...