Study On The Judicial Application Of Crime Of Abuse Of Authority

The crime of abuse of authority is a superinduced crime of the "Criminal Law" in 1997. According to the criminal law, it refers to the crime of any functionary of a state organ who abuses his power or neglects his duty, thus causing heavy losses to the state and the people on public money or property or the interests. various problems have arisen when dealing with the application of the crime, namely failure to reach unanimous views in practice on its constitutive elements, delimitation, accomplice, crime quantity forms,etc, which in turn affects the judgement and reasonable application of the crime of abuse of authority. In accordance to the trace of raising, analyzing and resolving problems, this thesis aims to put forward some solutions to difficult problems in dispute.The thesis is divided into four parts:The elements of the crime are discussed in the first part. It is believed that behavioral standardization of public employees, including validity,legitimacy and diligence, be the objects of protection; that non-action be an objective behavior, as it is defined to be "in violation of regulations" in accordance with the law and indeed exists in practice. The "heavy losses" referred to in the crime of power abusing are supposed to be identified before the case being filed,and established as accomplishment of the crime as long as the amount meets the required minimum. The indirect losses should be judged on the basis of causation; while non-material losses on the basis of specific conditions, and can be added up when they are different in nature. As one of the objective elements, "heavy losses"serve to distinguish crime from non-crime; and the causal relationship of a case should be identified based on a combination of the theory of proper causation andthe method of closeness; upholding the theory of "judging by duty" while abandoning the theory of "judging by statue"; that the culpability in such a crime be an offence committed from direct intention or indirect intention.The second part attempts to deal with the difficulties in the cognizance of crime, non-crime and relevant crimes. The distinction between the crime and mistakes at work and bureaucracy is discussed. The crime of abuse of power is considered to differentiate itself fundamentally from the crime of dereliction in offence forms, with the former intentionally while the latter negligently. In addition, the distinction between the crime of power-abusing and crime of intentional homicide is analyzed as well.In the third part, the issue of accomplice of the crime is studied and discussed. Status criminal and non-status criminal can be defined to commit a common status-crime; however, it depends on when both non-state personnel and state personnel are involved. On one hand, if staff of government can commit the crime solely, or non-staff of government cannot commit the crime on his/her own, his/her practicecomplicity of the status crime won’t be identified; on the other hand, a common crime of status will be established if staff working for the government cannot commit the crime independently. Non-status criminal, who is an accomplice to the crime of abusing-power, should be convicted guilty pursuant to a status crime, unless he/she has been convicted in other accusation by the Criminal Law.The fourth part discusses the crime quantity forms of the crime. There doesn’t exist idealkonkurrenz, gesetzeskonkurrenz or implicative relationship between the crime of abuse of authority and the crime of bribery. Taking bribes and abusing power are independent behaviorally, thus making it reasonable to be punished according to the provisions of combined punishment for several crimes; When dealing with the crime of abuse of authority, the principle of heavy punishment shall be adopted, instead of the principle of "the special law should be adopted before the common law", no matter it is an ordinary one or a special one.