A Rational Choice For Anti-Corruption

Duty-related crime is a serious form of corruption, whose essence is the alienation of power. It is one of the important factors carrying a negative impact on the nation's economy and politics. Besides, it takes on increasingly complex situation. On the basis of the interpretation of the duty-related crime and the direct, indirect, macroscopic and microcosmic causes of its appearance, this article explores the possibility of prevention and the preventive measures.Part 1 Analysis on the reasons and characters for domestic duty-related crime1. The condition and characteristics of duty-related crimeDuty-related crime, an extreme form of corruption, refers to the crime committed by the national staff and the staff of state organs who possess the state management functions because of their abusing powers, profaning terms and undermining national management functions. The data, recorded by the procuratorial organs during the past three years, has demonstrates that duty-related crimes in China express obviously in group, extensiveness of the area involved, concealment of crime methods, seriousness of the phenomenon of selling and buying official position, seriousness of judiciary corruption and inter-regional or international duty-related crimes.2. The reasons for the existence of duty-related crimeAs a special social phenomenon, many reasons can attribute to its existence, imitation of human nature and duality of state power are direct reasons; the transformation of social system and the social anomie are macro reasons; the lack of supervision and omission of law are indirect reasons, and dislocation of value and non-balance of psychology are micro causes of duty-related crime.Part 2 The theoretical foundation and values of prevention of the duty-related crime1. The theoretical foundation of prevention of the duty-related crime. Duty-related crime, one part of the prevention, belongs to the special category of anti-corruption. The foundation of the duty-related crime originated from the preventability of the duty-related crime. The knowablility of duty-related crime determines the possibility of prevention, its causality determines the objectivity of the prevention, and the variability of external factor determines controllability. From the knowablility and causality, we can see that the controllability of this kind of crime is a dynamic process of controlling, which contains supervision, combat, prevention, feedback, and many other links with the purpose of realizing the effective control of on-the-job crime.2. The values for preventing the duty-related crime.Although combating and preventing are two basic and indispensable measures used to govern the duty-related crimes, preventing possess a higher social value when compared to combating because the former is permanent cure strategy. The way of conducting the preventing task is a non-penalty one with the advantage of low cost and high efficiency. This method can, on the basis of the sound system, initiatively discover the signs and symptoms of the crime, eradicating crimes when it remains in a pre-emptive condition through easing psychology, exploiting warning education and using broad network of prevention. It is not only an active anti-corruption strategy, more specific, a low-cost anti-corruption strategy, but also a well-meaning form of anti-corruption.Part 3 The measures for preventing the duty-related crime1. Perfecting the preventative legislation to limit the duty-related crime.To prevent the duty-related crimes is not only the regulation of the Constitutional and legal principles, but also the inherent requirements of the Party and the State's elimination of corruption from the very source. The lack of legal basis and the relative lag of the degree of social awareness lead to many difficulties in the prevention work currently carried out in the practical process. Although the Party Central Committee and the State Council have established and developed a series of principles, policies and measures to prevent and resolve the corruption problem, these provisions and requirements are in general inclined to be relatively on principle, lacking specific operational norms. Thus, to strengthen the preventative legislation is a relatively urgent task in the present. The preventative legislation has been gradually putted on the agenda in order to better promote the in-depth development of this work. Local legislative work on preventing duty-related crimes has been successively launched in various parts of China. The author points out that to efficiently prevent the duty-related crimes; we should resort to the perfection of the legislation. First, a Duty-related Crime Prevention Act should be specially enacted by the Legislature to specifically prescribe the principles, contents, measures, and the responsibility of the prevention work on duty-related crimes, and to clearly define the duties and status belonging to the preventative subjects in various aspects and to some official agencies, including the office of the public prosecutor, the courts, the bureau of public security, some auditing, monitoring and preventing units, mobilizing the enthusiasm and initiative of every aspects under the rule of law. Second, the Standing Committee of the National People's Congress should enact a legal document similar to the Decision on the Comprehensive Management of Social Security. Last, a special chapter preventing duty-related crimes should be added to the existing Criminal Procedure Law.2. Strengthening the power of restriction to limit duty-related crime.To eliminate and prevent the occurrence of corruption, apart from employing the right of state penalties, we also need to take all kinds of measures restricting the power of operation. Regardless of which means we resort to, the essence and key of it is to better regulate the process in which the power operating. That is, constraining the operations of power to impel them operate on their legitimate track set originally; establishing the theorization of power operation and supervision on the basis of laws is a basic measure to constrain the government officials'corruption. Seen from the existing institutions of power restriction in China, the power restriction adopted to prevent duty-related crimes is mainly realized by the constraints given by the legal supervision organs to the power operation, by the power constraints implemented by the National People's Congress on the executive and judicial branches, by the supervision of the departments of disciplinary inspection and supervision for the public rights, and by the supervision coming from the property declaration system and public opinions, so as to curb the duty-related crimes.3. Using penalty sanctions to limit duty-related crime.Penalties possess a nature characterized by evil for evil and violence for violence. As the most compulsory means against the already-crimes, it is just the last line of defense. As for the punishment of such crimes, penalty methods should also be timely and effectively used. To make the duty-related crimes being timely investigated and published, we should strengthen supervision on the conduct of the state officials so that the illegal acts of these officials can be timely feed-backed to the relevant departments, and the Judiciary can grasp the crimes committed by the officials at the fastest speed, then accessing to the evidence and finally initiate proceedings in accordance with the law. From the domestic an foreign scholars'research on the principle of necessity of criminal law, the author believe that the criminal law on duty-related crimes should be, on the basis of such a thinking -being strict without seriousness, set up throughout the idea of mutual complementarities between being loose and being strict. We should not only oppose the sentence of heavy punishment without indiscrimination, but also disapprove of blindly chasing the trend of light punishment under the circumstance in which a variety of systems of duty-related crime still need further improvement.4. Strengthening the international cooperation to punish the duty-related crimes.With the current trends of localization and internationalization of the duty-related crimes in China, strengthening the international cooperation by means of Criminal judicial assistance has become one of important ways to check the corruption and bribery crimes. In China, both the international cooperation on punishing the duty-related crimes and the handling of corruption and bribery cases involving foreign factors are still in their infancy stage. China has accessed to the Conventions against Corruption of United Nation. The convention, with an instructive significant on building of the legal system in China, has become our legal basis for the extradition of the corrupt officials. It points out the direction for the research on duty-related crimes, bringing about a positive impact on the anti-corruption works of our nation.