On Execution Of The Judgment, Ruled That The Crime Of Abuse Of Power

The crime of abuse of authority to execute judgment is a crime newly added to Clause 3, Article 8 in << The Amendment of the Criminal Law of the PRC >, passed in the 31st plenary session of the ninth standing committee of NPC on 28th Dec ,2002, used as the Clause 3, Article 399 in the Criminal Law. This crime is neither stipulated in the criminal law in 1979, nor in the special criminal law, nor in present criminal law. It is a very serious crime, committed very frequently in the present judicial field. For it is a new kind of crime, it leads to more disputes in the judicial practice. This thesis is to probe into the crime.The thesis consists of 5 parts.The first part is about the legislative background and meaning of establishing the crime. Executive difficulty is a well-known problem that has already seriously shaken the public's trust in the people's court, and damaged the image of our party and country in the people's heart. Why is it so difficult to execute? Generally speaking, one reason is the social dishonesty, the other is the judicial corruption. Social dishonesty and other unhealthy social tendencies can be corrected by the policy, but judicial corruption can only be punished through criminal legislation. Just because there exists executive difficulty, and because the executive difficulty develops from judicial corruption, the legislation of this crime has been produced. The passage of the crime's legislation is very meaningful in solving the problem of executive difficulty.The second part is about how to define the crime for the Clause 3, Article 393. Should it be the crime of misconduct and abuse of authority in executing judgment, or should it be established separately as offence of misconduct in office in executing judgment and the crime of abuse of authority in executing judgment?The third part is about the constitution of the crime of abuse of authority to execute judgment. It has four parts: 1. The object of the crime. It refers to the normal executive activity of the people's court. The objective of the crime is judgment. How to define the executive activity? How to define judgment? 2. The objective aspects of the crime. It indicates the abuse of authority in executing judgment. Is the objective phenomenon of the abuse of authority equal to that indicated in the Article 397 in our criminal law? Is there any special meaning? 3. The subject of the crime. It indicates the special subject.There is still no definition about it for the time being. 4. The subjective aspects of the crime. It indicates intent, usu. direct intent, but not excluding indirect intent.The fourth part is about the Knotty problems in the judicial determination. 1. To make a clear distinction between crime and non-crime. 2. The relationship between this crime and other crimes, a. The difference between this crime and the offence of misconduct in office in executing judgment, b. The difference between this crime and the crime of bending the law for self-interest seeking and the crime of perverting justice for civil or administrative judgment respectively. 3. The accomplice of the crime. 4. The number of the crime. 5. The retroactive effect of this article.The fifth part is about the legislative inspection.