The Criminal Regulation Of The State Functionary’s Act Of "Covering Up" For Others

In this paper,the state functionary’s act of "covering up" for others especially means state functionaries action of using their powers to obtain financial subsidies for others.At present,there are great differences in the question that how to regulate that state functionaries’ action of using their powers to obtain financial subsidies for others,no matter in criminal law theory or in judicial practice.In judicial practice,there are three main judgement results:the first result is that state and non-state functionary are respectively identified as the crime of abuse of power and fraud,the second result is that state and non-state functionary are identified as a joint crime of fraud,and the third result is that state and non-state functionary are identified as a joint crime of corruption.Theory of separate convictions holds the opinion that those with and without status should be convicted and punished separately,in the cases of state functionaries action of using their powers to obtain financial subsidies for others.That is to say,state functionaries shall be punished as crimes of abuse of power according to the crimes committed in their posts,and non-state functionary shall be separately punished as a crime of fraud or other non-official crime according to his criminal composition.This theory emphasizes the identity difference of actors and ignores the subjective and objective relationship between actors,abandoned the integrity of the fact of accomplice and violated the basic legal theory and criminal law of joint crime,violates the basic jurisprudence of joint crime and the provisions of criminal law.At the same time,it also violates the principle of unification of crime,responsibility and punishment in criminal law,which may lead to severe imbalanced sentencing.Theory of prime culprit’s conviction holds the opinion that the nature of joint crime is determined by the criminal nature of the principal offender.If the principal offender is a state functionary,he shall be convicted according to the crime constituted by the state functionary;If the principal offender is a non-state functionary,he shall be convicted according to the crime constituted by the non-state functionary.This theory reflects the philosophical thinking of "grasping the principal contradiction",and in fact has become the mainstream view in the judicial practice field,and adheres to the accessory principle of accomplice.Most of the problems in joint crimes can be dealt with,but there are also obvious problems such as the inversion of the relationship between conviction and sentencing,the incompatibility of culpability and punishment,and the opportunity for the doer to avoid the heavy and the light.In the opinion of theory of duty crime conviction,the national staff and non-state staff on the implementation of joint crime,regardless of the non-state staff abetting,implementing or helping behavior,no matter its played what role in a joint crime,as long as is the use of the former position,should be in accordance with the state functionaries violate the charges to be determined by an accomplice to corruption.Compared with the theory of separate conviction and the theory of conviction according to the principal offender,the theory of conviction according to the duty crime is more consistent with the theory of joint crime and the original intention of legislation.So in dealing with state functionaries by taking advantage of their office when the cases show the fiscal subsidy for others,we should first abandon "conviction" and "in accordance with the said principal condemned" in the place where the unreasonable on the qualitative,give up according to the crime of fraud of the crime of abuse of power,conviction and with a view of crime of fraud of the joint crime convictions adhere to the "according to the duty crime convictions" scientific judgment,according to the views of joint crime convictions of duty crime,corruption will be punished as a joint crime.However,according to the duty crime convictions,too much emphasis on the role of the state functionaries in a joint crime and responsibility,and ignored the role of non-state staff in joint crime and the responsibility,will appear in reality some conform to the crime cannot be effectively regulate the actions of constitutive requirements,on the sentence is wrong.At the same time,we should also see that the conviction in accordance with the principal said."pay attention to the role of joint crime in the criminal of size classification,in sentencing,the comprehensive consideration of each person in the case of division of labor,behavior,effect,influence factors,such as to determine the master-slave made as an important reference of sentencing plot merit,etc.Therefore,in dealing with state functionaries by taking advantage of their office to obtain financial subsidies for others,we should be comprehensive consideration," from ",insist on " according to the duty crime convictions " conviction,to state functionaries and non-national staff common duty crime,on the basis of both criterion for the conviction in accordance with the principal said." in the aspects of reasonable,through the " individualized " punishment for individual justice and effective individual prevention,in an effort to carry out the principle of a legally prescribed punishment for a specified at the same time,fully embody the adapted for or consistent principle;Under the premise of unified conviction,the offenders should be differentiated and punished,so as to better achieve the same crime and punishment.Furthermore,in practice,laws and regulations are gradually improved,judicial interpretation is standardized,judicial practice is guided,and conviction and sentencing are unified.This paper consists of three parts:The first part:Combining with specific cases,this part analyzes the current situation and the problems of the legal regulation that state functionaries use their powers to obtain financial subsidies for others in China.The second part: This part analyzes the theoretical basis of different viewpoints and evaluate them.The third part:On the basic of the first and second parts,this paper gets the conclusion that we should stick to the theory of duty crime conviction and give consideration to the theory of of prime culprit’s conviction.Finally,this paper puts forward several suggestions about improving the legal regulation of state functionaries’ action of using their powers to obtain financial subsidies for others.