Study On “executing Duties According To Law” In The Crime Of Nuisance Of Public Service

In the all accusations of the criminal law, the most direct and typical expression of the tension between the national public power and the individual rights is the crime of disrupting public service, which is almost the most thorough denial of all state power against the citizen resisting the power of national law enforcement, and the intervention,restraint and punishment with penalty that is the most severe means.Based on this reason, the crime of disrupting public service is applied naturally with a certain arrogance, and has been the focus of restricting criminal power, practicing criminal rule of law and guaranteeing the rights of actors in the administration of criminal law. It is a great subject of the interpretation of criminal law that determine the range of "enforcing official affairs by law" reasonably, the essential factor of the crime provided in the Criminal Code, especially in the scene that the rising countries of legal modernization exist the congenital deficiencies of restricting public power.Based on this, the opinion that the legal interest, protected by the crime of disrupting public service,is legal official activities rather than including the individual legal interest of civil servants has been proposed firstly in this article. Official activities belong to the super-individual legal interest and the protection of the super-individual legal interest is not unconditional but rather should be committed to the protection of the individual legal interest. The individual is the prerequisite for the existence of state organs, and constant vigilance of criminal law becoming the violent tool of the state "Leviathan" is necessary, from the perspective of hermeneutics, for preventing the variation protecting the super-individual legal interest. The determination of "enforcing official affairs by law" should be based on the relationship between the individual and the state, and we should keep the restraint attitude for the enforcement of official activities and the interference of individual rights. Once official activities lack the legitimacy, those exercises of constitutional rights of criticism, advice, reporting and other basic rights and even the citizenship behavior of justifiable defense should be absolutely prohibited to be defined the crime.Secondly,the "official affairs" in the crime of disrupting public service should be limited to the mandatory public power affairs enforced by the formal personnel of the state legislatures, administrative organs, judicial organs, public institutions and the Red Cross. Furthermore, the protection of the crime of disrupting public service is the smooth enforcement of the official activities, and the resistance of the official counterpart is the enforcing. Therefore, we cannot ignore the legal rights of the subject of the crime that is the official counterpart and expand the range of "the enforcing" unlimitedly in order to guarantee the enforcement of the official activities.Last but not least,the establishment of "enforcing official affairs by law" should be delineated reasonably and conformed to the specific logical structure: at first, it should have the prerequisite facts those are the statutory conditions corresponding to the enforcement of the official activities. On this basis, the personnel of the state organs must be endowed with the specific permission by law, and enforce official affairs with the statutory way under the statutory procedures.