Research On The Identification Of Non-material Loss In Malfeasance

The crime of dereliction of duty is stipulated in the ninth chapter of the Chinese Criminal Law.It is a crime committed to protect the normal activities of state organs and the public’s trust in the objectivity and impartiality of their official activities.Malfeasance will cause great losses to the country,the society and the people.In addition to the tangible consequences of substantial damage in personal and economic aspects,there are also immaterial consequences of reputation,order of society and public interest that are difficult to consider.In judicial practice,the identification of substantial loss is relatively easy,while the definition of immaterial loss falls into a dilemma.Both theoretical and practical cycle are quite troubled,which is not only caused by unclear existing laws,but also caused by many characteristics of immaterial loss itself.Moreover,heavy loss is a necessary component of most dereliction of duty crimes.The difficulty in identifying immaterial losses will affect the conviction and punishment of dereliction of duty crimes,thus indulges crimes,fails to protect human rights and upholds judicial fairness and justice.By collecting many cases of dereliction of duty involving immaterial loss in southwest China,this essay will study the problems related to immaterial loss through practical cases.This essay is divided into four parts:The first part is the general situation of non-material loss of malfeasance crime.Southwest four provinces in recent five years non-material damage class sorting malfeasance crime,extract useful factors,with words and relevant charts illustrate the status quo of this kind of case,including the number and proportion,cases involving multiple areas and the main charges,behavior commits crimes in some cases,the material loss in the case of specific forms and sentencing circumstances of this kind of case.The second part is the problem of the determination of non-material loss in the crime of malfeasance.According to the characteristics of the collected cases,the problems in the identification of immaterial loss are summarized as follows: First,the identification of immaterial loss is not independent enough,or for dependent treatment,or when the existingmaterial loss can not constitute a crime and the immaterial loss is used to make up to convict.Secondly,the identification of the manifestation of immaterial loss is irregular and subjective.Thirdly,it is difficult to identify and collect the evidence that proves the establishment of immaterial loss.Finally,there are differences in the determination of immaterial loss between the public security organs and judicial organs.The third part is the reason of the difficulty in identifying immaterial loss.The main reasons for the difficulty in the identification of immaterial loss are that the provisions of judicial interpretation are too abstract and general,the immaterial loss itself has complex characteristics,affected by inaccurate identification of causality,and the adverse interference of public opinion on the judiciary.These problems together lead to the difficulty of identifying immaterial loss.The fourth part is to solve the problem of non-material loss recognized difficulties,according to the identified problems and causes,targeted for malfeasance crime of non-material losses that put forward feasible countermeasures and suggestions,in order to improve the law and refine the judicial interpretation is given priority to,at the same time to implement the case guidance system and set up perfect non-material loss forensics standards,implementation of the third party assessment,including auxiliary mechanism.