On The Determination Of Malfeasance Crime

Many questions are unsettled in determining the crime of malfeasance by bending the law for selfish ends (shortened as "malfeasance crime"). The key problem lies in the difficulty to ascertain it in judicial practices. Two reasons account for that. First, as a legal concept, the meaning of favoritism can’t be distinguished from the nature of it; second, as a constituent element, the legal status of favoritism is lack of clear judgment and determination. What’s more, there is a big argument on the determination of the nature of favoritism. And consensuses on whether favoritism belongs to the constituent element of conviction, or if it belongs to the constituent element of conviction, whether it is a subjective constituent element or an objective constituent element, etc. can’t be reached. In this article, the author has elaborated the above different opinions one by one in detail. In the meanwhile, the author, with his judicial experience in the investigation of malfeasance crime, offers his own opinions from the perspective of favoring judicial application and puts emphasis on how to deal with the difficult judicial situations of this type of crime.This article includes three parts.Part One raises the question that it is difficult to ascertain malfeasance crime in judicial practices. This part analyzes the dilemma of investigating and dealing with malfeasance crime, summarizes the reasons of causing this dilemma, puts forward specific path selections to solve the dilemma.Part Two provides three determination principles to ascertain malfeasance crime in judicial practices-actor knowing principle, criminal intentional act principle and objective fact determination principle. The author lists and analyzes specific cases about different understanding of the definition and the nature of favoritism in theory and practice circles from the angle of criminal hermeneutics, crime constitution theory, act theory and science of evidence law. At last, the author puts forward his opinion. That is, favoritism is a constituent element of both the subjective aspect and the objective aspect of crime.Part Three presents the exception of application and theoretical supplement of determination principles to fully solve the weak provability in judicial practice of malfeasance crime, which mainly apply in the determination on the amount of crime and the principle of punishment, when bribery and other crimes are involved.