A Study On The Legislation Of Perfecting The Subject Of Malfeasance In China

Amongst the existing duty crimes, crime of malfeasance is of serious social harmfulness, which not only significantly damages the image of the government as well as our nation, but also puts the interests of the nation and the people as a whole in extreme danger. Changes have been made to the provisions concerning the subject of malfeasance crimes in China, replacing the original "functionaries of state" with "functionaries of state organs", which has provoked an enormous debate in both practice and theory, implying several existing defects in the field of practice as well as placing the progress of punishing malfeasance crime in a passive situation. Although lawmakers have specifically enacted legislative interpretations on the abovementioned issue, along with the promulgation of judicial interpretations by the Supreme People’s Court and the Supreme People’s Procuratorate, the status quo has been plunged into epistemic chaos from the standpoints of both theory and practice, accompanied by the aggravating conflict between legislation on subject of malfeasance crimes and practical need to fight malfeasance crimes; the reasons are manifold:breach of the principle of a prescribed punishment for a specific crime by the legislature and the judiciary, inaccuracies during the process of lawmaking, and the inadequate grasp of legal definitions. Thereby comes the author’s four-tiered study from the perspective of procuratorial personnel by diversified research methods, including empirical analysis and comparative analysis, for the purpose of a proposal on adapting subject of malfeasance crimes legislation to judicial practice. The four parts are as follows:The first concerns the definition and characteristics of subject of malfeasance crimes. The author makes a conclusion on construction of the issue after the analysis of relevant debating schools, thereby submitting that the features of subject of malfeasance crimes are the identity of public officer and the relevance between the office and the responsibility.The second introduces the existing legislation on the issue and the flaws inside. The author summarises the history of relevant laws concerning subject of malfeasance crimes in China, and analyses the drawbacks from three aspects of lawmaking, judicial interpretation and legislative interpretation, considering the status quo of judicial practice in the meanwhile, hoping to find a way of remedy in the fourth part.The third comprises a comparative study and analysis on relevant legislations overseas by summing up their advantages as an inspiration to reforming related laws in China.The fourth makes several legislative proposals on the issue after enunciating the necessity of reforming the related laws and grasping the legal principles crucial to the reforms with an intent to emulate the advantages of international legislations based on the realities in China, which encompass replacing the current phrase to "public officials of state" and clearly defining the extension of the issue.