The Conditions For The Establishment Of The Crime Of Obstruction Of Official Business

Some time ago the Lei yang case frequently seen in newspapers,the law enforcement behavior legality cause public questioning and hot at the moment.Under the background of the current advocated governing the country according to law,how to judge the administration according to law,how to regulate the administration according to law has become an unavoidable topic in the academic circles.In obstructing public business this charges,it is particularly necessary to explore the problem of performing their official duties according to law.It is very important to carry out official duties according to law,which is of great significance to the establishment of public service.But in the current criminal law system of our country,the law enforcement of the issue and no unified and clear understanding,so there are many problems in practice such as: for there are many differences between the defects of official acts performing official duties according to law,the scope of subject behavior understanding,civil servants and other effects on sentencing and controversy.These problems are generally attributed to the understanding of the implementation of public affairs according to law.In view of this,this paper on the basis of the law enforcement and the related problems are analyzed and discussed,in order to achieve two objectives: to help the judiciary to accurately understand and apply the law on the one hand,to be fair sanctions on the behavior of the legitimate rights and interests of obstruction of official business activities;on the other hand also hope to help protect the citizens to solve the contradictions among the people,and promote public servants according to law,to build a good legal environment.This article is divided into four parts,a total of about 34 thousand words:The first part is about the problems and reasons.This part is mainly from the referee network and related books,collected relevant data and cases of obstruction of official crime is controversial,through statistics,comparison and analysis,summed up the present situation of application in the judicial practice of this crime,the judicial organs and the judicial identification in the presence of the lack of standards to perform official duties of the the problem of elements.This part of the paper is to clarify the issues that need to be discussed in this paper,and pave the way for the following issues.Secondly,mainly from the legislative level and judicial level on the application of the crime situation and analyzes the reasons of the judicial application standards lack,it is concluded that to solve many problems that existin the obstructing public business in applicable,must be correct view of national public servants law enforcement behavior,must strictly limit the premise condition of the convicted,namely in performing their duties according to law.The second part is the understanding of the execution of official duties according to law.This part is mainly about "official duties" in accordance with the understanding of the layers of analysis,focuses on the analysis of what kind of behavior can be regarded as legal official acts,in particular from three dimensions,namely: elements of fitness-"people"(protection object of this crime--on the staff of state organs range controversial issues),timely-time elements("official duties" understanding),legality-basic elements(the "law" in the understanding of the conditions of legal and public behavior and judgment standard),thus the author concluded that only personnel eligibility,behavior optimum method,time,timely official behavior is truly performing official duties according to law,to constitute the premise and foundation of obstructing public business set up.The third part is about the influence of the defective official act on the crime of obstruction of official business.This section is mainly in the already defined what is and how to recognize the "basic duty" behavior according to law,to further explore the practice of law enforcement personnel frequent flaws in the process of law enforcement,will have an impact on the conviction and sentencing.This part from the defect of official acts of law enforcement personnel and the effectiveness of the definition,on the basis of the relevant theory of administrative law,the official behavior of different degree defects are divided into three types: official acts,invalid flaws revocable flaws and official behavior defect correction official behavior.According to the theory of right of defense and limited public force theory,put forward defects affect the conviction of official acts invalid,revocable,defect correction official behavior does not affect the conviction that.According to the fault of the victim theory,put forward the invalid flaws of official acts,should reduce the punishment on the behavior of a lighter or;for the revocable flaws of official acts,can reduce the punishment on the behavior of people can be given a lighter or;defect correction official behavior did not affect people’s behavior and sentencing claim.The fourth part is the exploration of the related problems of the crime of obstruction of official business.In this part,the author puts forward some suggestions on legislation and some measures to deal with the crime of obstruction of official business.