Legislative Perfection On The Crime Of Not Transferring Criminal Case With Practice Favoritism

Administration according to law is related to the vital interests of the people,and also to the harmonious development of the politics,economy and culture,so that most countries have set up the corresponding criminal law norms to crack down on the administrative law enforcement officers of dereliction of duty,the crime of not transferring criminal case with practice favoritism in China is also based on this purpose.From the practice point of view,this crime has obvious effect on punishment of the crime of administrative law enforcement.However,it has not yet played the desired effect,the behavior of people is relatively difficult to be aware of,also,there is a very important reason is that the case was found after the implementation of more difficult to verify.First,both the scholars and the judiciary have unified understanding of several special subjects,the law should be clear about it.Whether the unit can become the subject of this crime is a very controversial topic,some scholars believe that if the administrative organs in order to reap the personal interests of the unit,make the collective will decision to implement not-transferring criminal case with practice favoritism,then the unit should constitute the crime.Assuming that the idea is true,the judiciary fines the unit in accordance with the law,but it is clear that the administrative law enforcement agencies’ activities are financed from the national finances,and it is doubtful whether we can receive the actual effect by fining them.For the discipline inspection,the supervisory organs of the staff can constitute the crime or not,we should discuss it separately.Discipline inspection departments belong to the party’s important institutions and implement party discipline mainly,so its staff can not become the subject of this crime.And the supervision department has the nature of administrative law enforcement agencies,which is in line with the requirements about crime of not transferring criminal case with practice favoritism.In addition,the staff of the public security organs should also be treated differently,if it is in the administrative law enforcement process to find criminal cases but not handed over to constitute the crime,if it is in the criminal justice tasks can not be punished on the crime.Second,the expressions of "playing favouritism and committing irregularities" and"serious situation" in article 402 of the Criminal Law are also factors that hinders the punishment of administrative law enforcement personnel.It is difficult for the judiciary to determine the subjective motive of the perpetrator,but if it can not prove the existence of practice favoritism,then the verdict can not be judged on this crime,so the necessary condition for "favoritism" provides an opportunity to a great extent for the perpetrator to escape from criminal punishment.In fact,we can think from the point of view of legislative purpose whether the above two elements are necessary.The crime is set up to punish the duty dereliction of administrative law enforcement officers,but as long as they have the fact that they did not transfer criminal cases,they have been punished regardless of whether they have any malpractice and serious circumstances.Therefore,the expressions "playing favouritism and committing irregularities" and "serious circumstances" should be removed from the law.Third,the provision of "should transfer according to law but do not" is vague.As mentioned earlier,the fact that "not transfer" is the key to the crime,so the relevant laws and regulations should be specificized and enhanced in operability.Specifically,we need to clarify the following aspects:the transfer object is a criminal case;The question of whom administrative law enforcement officers in different positions will transfer cases to should be specifically analyzed,and the final results of not transfer should not be"one-size-fits-all";The transfer standard is summarized as "others suspected of a crime",the court suspects on the original case whether the guilty verdict does not affect that the administrative law enforcement officers constitute the crime of not transferring criminal case with practice favoritism.Fourth,the setting of legal punishment of this crime is unreasonable.The magnitude of the social harmfulness of criminal behavior is an important factor that affects the severity of a statutory penalty,which should meet the requirements of the crime and culpability.However,the setting of this crime does not reflect this feature,by comparison we will find that the legal penalty is too light,which is not compatible with the other malfeasance crimes in the chapter of the Criminal Law.Therefore,it is necessary to adjust the provisions of the statutory punishment,so that compatibility between the crime and culpability is more conducive to the realization of legislative purpose.