Research On Several Issues Of Crime Of Releasing Prisoners Without Authorization

The crime of releasing prisoner without authorization is a crime of dereliction of duty regulated by the 400 th item of the current criminal law of China.It not only makes criminal suspects,defendants and criminals evade the legal sanctions,but also seriously damages the normal supervision and custody order of our country and the dignity of the law.However,the 400 th of Chinese Criminal Law is relatively simple in its provisions,which makes the crime controversial in theory and practice,especially after the amendment of the Criminal Procedure Law and the establishment of the National Supervisory Commission,it faces some new problems.In view of this,the author tries to conduct a preliminary discussion on some disputes about the crime of releasing prisoner without authorization,in order to attract more scholars’ attention to the crime and in order to help improve the theory and judicial practice of the crime of releasing prisoner without authorization.In the first part,the author discusses the subject of the crime.On the subject of the crime,there is a dispute between "function theory" and "identity theory" and whether discipline inspection and supervision personnel can become the subject of this crime.The author conducts a detailed analysis and comparison,and believes that the discipline inspection and supervision personnel can be the subject of this crime.Although the discipline inspection and supervision personnel are not judicial personnel in the criminal procedure law and form,they are actually performing the functions of judicial personnel in criminal law and substance sense.It is obviously unfair to disregard the behavior of releasing prisoner without authorization by the discipline inspection and supervision personnel.In order to maintain the balance of punishment,we should use the method of systematic interpretation to treat the discipline inspection and supervision personnel as judicial personnel,so that the penal system can be self-consistent.As for the dispute between the "function theory" and the "identity theory" of the criminal subject,the author believes that the subject of the crime of releasing the prisoner without authorization should be judged by whether or not there is responsibility of investigation,prosecution,trial or supervision.The second part discusses the target of the crime.The author analyzes themeaning of "in custody" and clarifies the scope of "suspects,defendants and criminals".The author thinks that the person who is detained for interrogation,on lien or under surveillance can be the target of this crime,and the person who is detained beyond the time limit cannot be the target of this crime.In the third part,the author analyzes the behavior of releasing prisoner without authorization.From the perspective of obligation crime,it is considered that it is irrelevant whether the behavior of the releasing prisoner without authorization is an act or an inaction.The important thing is that the actor violated his positive obligation."temporarily" releasing detainees without permission does not constitute this crime.The illegal release of detainees in the form of collective decision cannot constitute this offense.In the fourth part,the author analyzes the form of the crime of unauthorized release of detainees and holds that the principle of combined punishment for several crimes should be applied to the behavior of private release of detainees and bribery;non judicial staff can also constitute the accomplice of the crime;the completion standard of the crime is that the target of private release is actually out of the control of the supervisor and the regulatory authority.