Several Studies Malfeasance Subject

The article is divided into the following several parts:The first part of this paper expounds the main body in malfeasance legislative change.Our country criminal law about the definition of subject of malfeasance, the firststage is the30years after the founding, our country did not promulgated the penalcode, the regulations of malfeasance crime and punishment in referring to theregulations or the internal decision; The second phase of the penal code of ourcountry the first introduced in1979, defines malfeasance subject as "national staffmember"; The third phase began in1997, revise and implement of the current penalcode, to reduce limit for malfeasance body functionary of a state organ; The fourthstage for December28,2002to now, the top legislature and judicial organscontinuously through enacted legislative interpretation and judicial interpretation, themain body of malfeasance to pay gradually widened.The second part to the legislation of subject of malfeasance in China retraces thedefects. One is elaborated the criminal law revised in1997legislative defects. First ofall, the article397of the amended criminal law provisions of the crime of abuse ofpower and dereliction of duty subject scope too narrow, lead to a state organ staffmalfeasance crime behavior cannot be held; Secondly, the specific stipulated in therevised criminal law chapter9malfeasance crime subject scope too narrow, is notconsistent with the characteristics of both in the judicial practice; Again, the conceptof "national office working personnel" are not clear, lead to the criminal lawtheoretical logic confusion and difficulty that exist in the judicial practice, influencecrime and is not a crime, the cognizance of this crime and those SINS, beneath theauthority of the law; Finally, the provisions of the criminal law and criminalprocedure law in the same conflict. Second, expounds the defects of judicialinterpretation. Third, expounds the defects of the legislative interpretation. Fourth,this paper expounds the promulgated in December2012, the latest judicialinterpretation The third part of the main body in malfeasance reasonable definition of theconnotation and denotation of. To our country academic circles in the main view onthe overview and analysis of the theory of "identity" think national office workingpersonnel should have national cadre identity,"business" refers to a recognizednational office working personnel should be in terms of whether it is engaged in thebusiness,"theory of identity and official business both think, national office workingpersonnel should possess in the essential characteristics of life, should also havecertain features in the form of identity. National office working personnel should alsohave a "working in state organs" and "public" the two essential characteristics. Stateorgans, including four types: a, constitutional state institutions; Second, in accordancewith the laws and regulations to exercise state administrative management function oforganizations; Third, entrusted by the state organs exercise the power of the stateadministrative management organization; More than four, the villages and townsorganizations of the communist party of China and the Chinese people’s politicalconsultative conference. Business refers to on behalf of the state (state) to performsuch as organization, leadership, supervision, coordination, management positions inthe nature of management activities. The "national office working personnel" includes12categories: a, national chairman, vice chairman of the People’s Republic of China;Second, the persons who perform public service in all levels of organs of state power;Three, persons who perform public service in the state administrative organs at alllevels; Four, persons who perform public service in the national military organs at alllevels; Five, the persons who perform public service in the national judicial organs atall levels. Six, persons who perform public service in the national procuratorialorgans at all levels; In the villages and towns, the above persons who perform publicservice in the organization of the communist party of China; Eight, in the Chinesepeople’s political consultative conference and trade unions, communist youth league,women’s federations at all levels of authority in the professional personnel engaged inofficial business. Nine, persons who perform public service in various democraticparties; Ten, in accordance with the laws and regulations, and exercise the power ofthe state administrative management organization of personnel engaged in publicservice; Eleven, represented in entrusted by the state organs engaged in public service in state organs exercise their functions and powers of the organization; Twelve, wasnot included in the state organs personnel but persons who perform public service instate organs.The fourth part compares the legislation of the subject of both at home andabroad of malpractice research, at the same time points out the reasonable foreignpractices for our reference. International malfeasance subject scope legislation mainlyexist the following cases: the first is the main body of regulations of malpractice iscivil servants, and defined the scope of civil servants to list; The second is the mainbody of regulations of malpractice is civil servants; The third is the main body ofregulations of malpractice for civil servants; The fourth is the main body ofregulations of malpractice is civil servants and the entrusted to engage in publicservice and engaged in the work of service personnel. Foreign legislative cases thereare two main characteristics: one is clear, specific,2it is a wide range.The fifth part puts forward legislative Suggestions on the main body inmalfeasance. The current academic circles and judicial practice common threelegislative proposals: one is amend the malfeasance subject to "state personnel"; Thesecond amendment of the criminal law, by the "national office working personnel" tomake a clear definition;3it is to amend the malfeasance subject to "national civilservants". The author recommends the main body of malpractice is amended as"national staff member", one is the return of the "national staff member" meeting theneeds of judicial practice at present stage; The second is the legislative interpretationand judicial interpretation have "state personnel" regression trend.