Crime Of Abuse Of Study

Abusing-power crime provided in Artide 397 of 1997 criminal law of PRC is a crime of dereliction of duty which has a very serious harm. Sine its description is very abstract and brief, this crime has caused much controversy both in theory and in practice. This paper will try to put forward some views on some disputes in the current theory and judicial practices by analysing the criminal constituents so that it might have some good effect on the judicial practice and legistative improvement in the future.This dissertation is made of three parts.Frist of all, it tries to probe and research the right description of abusing-power crime by comparing and analysing the various concepts about the crime already available in the academic circles. The author thinks the correct expression of abusing-power crime shall be those behaviours that public servant(s) or staff performing public affairs (in sum public service personnel) who has/have surmounted his/her/their authority, illegally decided, disposed of affairs which they have no power to decide or deal with or broken some stipulation while processing official business or given up their duty and obligation, thus resulted in substantial loss of public property, national and people' s benefits; the author expounds her view points and reasons about the crime' s subject, its subjective aspect, its object and objective aspect through deliberating and analyzing various ideas and controversies over the constitutive requisites of abusing-power crime and associating related specific cases in the judicial practice. The writer brings forward the following points of view:the definition about the subject of abusing-power crime shall regard "public attain responsinility" asthe ruling standard, the subject of abusing-power crime should be public employment personnel; the crime' s subjective aspect can be intentional, including both direct and indirect intention, and it can also be negligence which shall be fault of excessively selt-confident form,rather than that of carelessness; the object of the crime shall be the justifiability of the functional behaviour of state organ' s functionary;the objective aspect of the crime shall include (l)the conduct of abusing power (2) the harmful consequence of substantial loss of public property .national and people' s interests (3)the cause-effect relationship between the abusing-power action and the harmful result ,all of which shall be satisfied at the same time or else it could not constitude the crime.Part two, this paper will discuss and demonstrate the dividing lines or boundarys between abusing-power crime and acquittal, between this and other crimes by starting with the perspective of constitutive requisites. The author believes that the key to differentiation/distinguishing between abusing-power crime and general power-abusive behavior is whether or not the power-abusive behavior leads to heavy or substantial loss of public property ,national and people' s interests; abusing-power crime has the same criminal subject as the crime of neglecting one' s duties but they are different from each other as far as criminal object, objective aspect and subjective aspect are concerned;and this article will expound how to understand and determine the harmful consequance, including material and immaterial result, when deciding or defining the criminal responsibility of the wrongdoer who has commited abusing-power crime. Besides, this paper will talk about the issue of sharing or distribution criminal responsibility of abusing-power crime.Part three, according to the stipulations of criminal responsibilityconcerning abusing-power crime in criminal law of PRC. The author argues that as to the comprenhension of the phrase "for selfishness" in item 2 article 397 of criminal law, it shall not only refer to personal relationship, private interests, but also include for the sake of unit and small group; this paper brings forward some legistative advice about criminal responsibility of the wrongdoer who has commited abusing-power in light of some defects in the legal provisions of PRC criminal law. The writer suggests that the legistative system should adopt the form of one crime to one article and make abusing-power crime be an independent article; highten the penalty of the crime; it is inappropriate for the law to regard substantial harmful result as an indispensable constituent of the intentional kind of abusing-power crime and the requirement of substantial loss in the constituents of abusing-power crime shall be repealed and replaced by the rule of circumstantial seriousness (or serious circumstances).