| The New Rural Cooperative Medical Care(hereinafter referred to NCMS)System specific to rural population has been established over a decade.During its operation,the basic practice of local governments is to set up management institutions of different administrative levels in accordance with documentations issued by superior government,and grant them corresponding examination and supervision function.The loss of compensation fund is a common occurrence due to the fact that the staff of such institutions are careless by not performing their duties earnestly or abusing their authorities.It is very controversial in practice whether the staff involved shall be held criminally liable for crime of dereliction of duty.Most of the courts return verdicts by affirming such behavior constitute relevant crime of dereliction of duty;however,it is unanimous regarding the status when the staff commit the crime in,are they the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs,or staff of State-owned enterprises,or functionaries of the State organs.Given that the peasant engaged in NCMS actually benefit of the special fund,few courts did not regard the dereliction of duty as causing property loss and returned its verdict of no condemnation.The author takes the case study of Liu who worked in a NCMS office in a county and was suspected being involved in the crime of abuse of authority and dereliction of duty,which was investigated and prosecuted by the procuratorate where the author is working.In this essay,there are analysis and research regarding the above-mentioned controversial issues in order to correctly determine on the nature and deal with similar cases in the future.This essay is presented in the following three parts:First part is the general information of the case.Firstly,introduce the facts of the case,there are three controversial opinions regarding the determination of the case's nature: the staff involved(1)constitutes the crime of abuse of authority and dereliction of duty;(2)constitutes the crime of abuse of authority by staff of State-owned enterprises and dereliction of duty by staff of State-owned enterprises;(3)is not guilty.Then,analyze the focuses of controversy:(1)how to understand the meaning of legislative interpretation regarding the subject of the crime of dereliction of duty,which is “the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs”;(2)how to understand the meaning of “loss” in the crime under PRC Criminal Law regarding the crime of abuse of authority,dereliction of duty,abuse of authority by staff of State-owned enterprises,dereliction of duty by staff of State-owned enterprises.Second part is the legal analysis of relevant issues,which is presented by two levels:Analyze and study the meaning of the subject “functionaries of the State organs” in the crime of dereliction of duty;separately analyze and study the “functionaries of the State organs” under laws and legislative interpretations and its essential characteristics,the meaning of quasi-functionaries of the State organs and “the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs”.It is considered that whether the actor is the functionaries of the State organs under the Criminal Law shall not be identified by his identity of the functionaries of the State organs,but shall be identified by the duty he is engaged in if he manages public affairs on behalf of the State.The assignee shall be identified by confirming whether the mandatory is the State organs and the assigned matters are the public affairs managed by the assignee on behalf of the State.Analyze and study the meaning of “loss” in the crime under PRC Criminal Law regarding the crime of abuse of authority by staff of State-owned enterprises,dereliction of duty by staff of State-owned enterprises,abuse of authority and dereliction of duty.The conclusion is that the first two crimes only refer to economic loss;the last two crimes refer not only to economic loss,but also non-economic loss including personal injury etc.The flow of economic loss of the four crimes is not related to the units or individuals who have kinship with the actor,which means the beneficiaries are the common people who have no kinship with the actor;as long as the benefit is generated by acts which violate the laws and regulations,it belongs to the “loss” of the four crimes.Third part is conclusion of analysis.In this part,it is integrated the theoretical opinion that the author agrees with which is presented in the legal analysis part.The author considers that in the controversial case,Liu is the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs,and Liu is the subject of the crime of abuse of authority and dereliction of duty.His acts lead to the fact that the capital of NCMS is benefited by the units or individuals who are not the legitimate subject.Although the beneficiaries are not the kith and kin of the actor,the loss belongs to the “great loss of the interests of public property,the State and the people”.Liu's acts constitute the crime of abuse of authority and dereliction of duty. |
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