Identification Of "Loss" In The Crime Of Malfeasance

Dereliction of duty is a serious corruption,anti-dereliction of duty is also an important part of the party’s clean government and anti-corruption struggle.Compared with the corruption and bribery,the theoretical research of the crime of malfeasance is relatively scarce.The "loss" of malfeasance has also been controversial in the judicial judgment for a long time,and has not been solved well.This paper analyzes the characteristics of "loss" of malfeasance start from the conception of "loss" of malfeasance.It was agreed that the "loss" of malfeasance depends on criminal law and judicial interpretation which will affect the conviction and sentencing of malfeasance.It has three important features,including legal,diversity,variability.Through the study of the status and role of "loss" in the crime constitution of malfeasance,it is concluded that "loss" is the essential element of the objective aspect of the establishment of dereliction of duty.The "loss" is boundary between the general dereliction of duty and crime of malfeasance,and the line between this crime and another crime,between misdemeanor and felony which are both belong to dereliction of duty.This paper analyzes and evaluates the theory of classification of the loss of material and non-material loss,direct loss and indirect loss,and studies the difficult and hot issues of "loss"in judicial recognition.In the study of the loss of human life and health,we focus on the problems of missing and declaring death,the calculation of death time,the judgment standard of death,disability and serious poisoning and so on.In the study of economic loss,we focus on the expectable benefit of economic loss,the loss from state-owned units to take fiscal funds,and how to detennine the time nodes of the economic loss and so on;In the study of specific type of the loss,we focus on the judicial application situation and suggestion of "the adverse social impact",and the relationship between media reports and "bad social impact".Through the above research,we believe that the controversy about the "loss" of malfeasance in the judicial identification reflects some true problem,including the legislative lag,judicial officer are lack of attention and more rely on judicial interpretation enacted by Supreme people’s court,and theoretical research is not enough depth.With the development of practice,the extension of "loss" of malfeasance has been broken through continually to inadaptation of practical needs.This has become the shackles of further development of theory.The dilemma about identify harm result of malfeasance has seriously affected the work of punishing the lenient service and dereliction of duty,which is incompatible with the high pressure situation required by China’s anti-corruption,and does not conform to the proposition that "dereliction is serious corruption" Because of the variability of "loss" in the crime of malfeasance,it is easy to argue in the judicial decision when the loss is in an uncertain state.In order to solve the above problem,provide a way to adapt to the current needs to punish malfeasance and a clear basis for the further development of theory,we proposed to use the "damage" to replace the "loss".