Tutor: LiuXianQuan
School: East China University of Political Science
Course: Criminal Law
Keywords: dereliction of duty legal interest acts of duty legislation suggestion
CLC: D924.393
Type: PhD thesis
Year: 2008
Downloads: 571
Quote: 1
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Executive Summary
| Running the country begins with supervising civil servants strictly’, it is a must for building our socialist country under the rule of law to ameliorate and enhance the mechanism of criminal punishment on the crimes of dereliction of duty by personnel of state organs. Following this thread, this thesis makes deep research on the crimes of dereliction of duty. It contains 8 chapters except for introduction part.Introduction Part is about public power. After discussing the origination, characteristics and representation of public power, we reach the conclusion that the public power resulting from common needs is one of means that are used to allocate recourses to satisfy community of interest. As public power is undoubtedly controlled by the original desire coming from the inside, it is possible that controllers will deviate from the right rules of public role and public power, which could bring misuse of public power and then resulting in the deviation between purposes and administration of public power and itself, i.e. dissimilation of public power. In essence, the crimes of dereliction of duty are conducts abusing one’s authority. It is dissimilation phenomenon in the process of administration of public power. In introduction part, it also tells us the main reasons of fast spread of the crimes of dereliction of duty when it is found that these common crimes in large number in nowadays cause huge losses of common property, interests of county and people.To begin with, the first chapter introduces concepts and classification of the crimes of dereliction of duty. It suggests that the concept of the crimes of dereliction of duty should be interpreted as: according to the criminal law public servants of state organs during the process of administration of public power who abuse their power of office or neglect their duties or practicing favoritism or irregularity, thus causing a heavy loss to public property or interests of the state or the people, shall be deemed as committing the crimes of dereliction of duty. At the same time, this part give various classification on such crimes based on different criteria. Then the review of ancient and modern legislation history of the crimes of dereliction of duty is given. It makes an analysis on main points of ancient legislation history of the crimes of dereliction of duty, which is very useful for reference in present work. This part also give a comprehensively comparative analysis on foreign legislation of the crimes of dereliction of duty from different aspects: accusation classification, constitutive requirements, penalty etc.The second chapter is focused on legal interest of the crimes of dereliction of duty. The basic function of criminal law is protection. In order to protect order of society, common interests of society have to be legal interests by criminal law. It is one of points of this thesis that legal interests violation theory is very important for Chinese legal system building especially under current situation that protection of human rights was accentuated. Based on the comprehensive introduction and commentary of various views of legal interests of the crimes of dereliction of duty, this part give a new concept on legal interests of the crimes of dereliction of duty, which points out that the normative of act of duty of a public servant of a state organ and the real interests it protects are the legal interests of the crimes of dereliction of duty. The normative is a fundamental characteristic of an act of duty. From act of duty’s point of view in this chapter, the normative means two things: firstly, setting up norms so as to put acts of duty in a legal frame; secondly, the process of an act of duty is in conforms with norms. The former one emphasized particularly on the pre-requisite condition of acts of duty of a public servant of a state organ; the latter emphasized particularly on the virtual judgment thereof. The normative, as legal interests of the crimes of dereliction of duty, contains legality, justice and diligence, which is in accord with obligations of public servants stipulated in public servant law of our country. Taking the normative as legal interest of act of duty is suitable with the spirit of modern legal state that we try to build. The third chapter is to analyze the constitutive requirements of the crimes of dereliction of duty and make a research on act of dereliction of duty-essential element of illegality of the crimes of dereliction of duty from objective aspect. It is concluded in this part that the core of act of dereliction of duty is the violation of act of duty. In essence, act of duty is a statutory obligation that results in legal responsibilities, in other words, a specific obligation that a public servant of a state organ has to fulfill when he in execution of his official duty. This specific obligation is part of official responsibility. The consistency of authorities and responsibilities means that discharging one’s duties can be deemed as bearing one’s responsibilities that is the precondition and keystone of act of duty of a public servant of a state organ. Therefore, violation of act of duty makes act of dereliction of duty illegal. On the other hand, this chapter also discusses about harmful consequences-punitive element of the crimes of dereliction of duty. My opinion is that the harmful consequences of the crimes of dereliction of duty not only cover great loss of public property or interests of the state or the people, but also covers impairment of normative of act of duty of a public servant of a state organ.‘Subject of the Crimes’in this part gives a review on legislation history of the subject of the crimes of dereliction of duty, expatiates on the fundamental characteristic of the subject of the crimes of dereliction of duty, defines the meaning of state organ and public duty and holds an opinion that public duty shall be considered as common affairs associated with administration authority of the state. From subjective aspect, this part reaches the conclusion that it is difficult to solve the problems of subjective aspect of the crimes of dereliction of duty by composite faults theory. Thus, this part is in favor of single fault theory and explains the forms of intent and negligence of the crimes of dereliction of duty so as to point out that based on particular traits of cognition factor and consciousness factor of objective aspect of the crimes of dereliction of duty, mental forms of the crimes of dereliction of duty include deliberately intention and negligence. As for some difficult and complex cases, the mental form of the actor is non-determinable. The mental form of the actor about the harmful consequences he caused sometimes is confusing. It may be deliberately intent and also could be negligence and even mixed mental state. If it is difficult to judge the mental form of the actor, it should be presumed as negligence.The fourth chapter makes a research on several difficult issues on the crimes of dereliction of duty. As for culpable forms, the author holds an opinion that for behavioral offenses, the differences between accomplished offense and unaccomplished offense is whether the actor finished the conducts that satisfy statutory constitutive requirements. However, culpable forms are stipulated intricately in the criminal law of our country plus various ness of the actors committing behavioral offenses, it is very difficult to define accomplishment of statutory conducts of constitutive requirements whether it is in theory or in practice. Therefore act of perpetrating and legal interests that criminal law pursues to protect are important consideration for defining whether the actor accomplished the crime. When it comes to the issue of complicity-those who are not public servants can be regarded as an accomplice of those who are, this part holds an opinion that it shall be treated differently based on different situation: for some kinks of the crimes of dereliction of duty, as the actor is irreplaceable, those who are not public servants can not be an accomplice in such crimes; but for other crimes of dereliction of duty, they can. In the discussion of next issue‘quantity of crime’, by an analysis on the traits of implicated offense it is held that the act who commit the crime of bribery and a crime of dereliction of duty at the sometime shall be treated as committing a implicated offense. In addition, this part also probe into the issue of‘original case’and points out that procuratorial organizations shall have privileged jurisdiction on such crimes of dereliction of duty as bending the law for the benefits which is based on the nature of‘original case’. At the last part of this chapter, the issue of‘overlap of the law’has been discussed.The fifth chapter gives a deep look into the crime of neglect of duty-one of three typical crimes of dereliction of duty, which includes defining the scope of duty of care. The nature of the crime of neglect of duty is violation of duty of care by public servants of state organs which incurring harmful consequences. Thus duty of care plays a very important role in establishing the point that the actor is with neglect. Although there is no rules in the articles of the criminal law about duty of care, it is undeniable that duty of care has a normative structure. For a public servant, duty of care originates from specific rules, duty of position and normal practices. So to judge whether a public servant of a state organ obey the law depends on the foresaid aspects. As long as a public servant of a state organ does not obey the rules, can foresee harmful consequences and does not take any remedial measures, the actor shall be considered as being out of duty of care. Otherwise, the actor shall not be criminated. From the point of hermeneutic of criminal law, this part concludes that the meaning of serious violation of duty of care is actually a brief concept of the crime of neglect of duty by systematically interpreting of the articles of the criminal law. Serious violation of duty means not discharging the duty or not properly discharging the duty. Finally this chapter makes an analysis on the causation of the crime of neglect of duty and exemplifies this argument based on impersonal responsibility theory.The sixth chapter is about actual practices of the crime of abuse of official capacity. At first, this part looks into acts of abuse of official capacity, analyzes the acts of abuse within official capacity and defines the scope of acts of abuse out of official capacity and then reach the conclusion that acts of abuse of official capacity covers the acts of abuse within and out of official capacity. In the next place, this part makes a research on capability of the crime of abuse of official capacity. It argues that the actor shall be fully aware of the scope of official capacity and the process and mode of discharging official duties when the actor is in violation of official duty. However the actor still choose to abuse the power under the well understanding of harmful consequence incurred. Such psychology condition explains the high degree of subjective evil character of the actor and shall be deem as deliberately intention. In the final part of this chapter, based on the analysis on several real cases, it points out that the discrepancy between the crime of abuse of official capacity and the crime of neglect of duty exists in the subjective aspect.The seventh chapter discusses about the crime of bending the law for benefits. This part particularly illuminates whether those who control and surveillance over prisoners, technical staff for judicature, clerks and secretaries can be the subject of this crime in pracitce. It argues that the judgment of object of the crime of bending the law for benefits depends on the essential nature of identity of a judicial officer, that is, a judicial officer must have the responsibilities of investigation, prosecution or judgment. As long as one has above duties, one can be the subject of this crime. Therefore, in practice we need to take such considerations as origination of one’s duty, scope of specific duty and term of one’s duty etc. into account before making decision on whether one can be regarded as a judicial officer. For the issue of the legal importance and the nature of benefits, this part holds an opinion that it should be explained by the motive of the actor. Benefits are kind of stimulation to push the actor to bend the law. Just because of such stimulation, an alleged judicial officer wants to bend the law to meet his desire from inside. Thus the motive theory is reasonable. Plus, this chapter also makes a deep research on such objective aspects of the crime of bending the law for benefits as judgment of taking advantage of one’s post and the limitation period of prosecution of this crime.The eighth chapter gives legislation suggestions on the subject, statutory sentence and culpability of the crimes of dereliction of duty based on the defects of the current law. For the issue of the subject of the crimes of dereliction of duty, it shall be stipulated as a public state of state instead of a public state of a state organ, as it is much more appropriate for punish severely of the crimes of dereliction of duty to meet real needs by government. For the issue of the statutory penalty, this part argues that the level of current statutory penalties shall be lifted and deprivation of public rights shall be added as a supplementary punishment of these crimes. For the issue of culpability, the law shall make it clear about criminally mental status of the crime of abuse of official capacity and the crime of neglect of duty and give different statutory penalties on intentional crimes and negligent crimes. In addition, this chapter also makes an analysis on negligence of supervision theory. It argues that it is of great importance in practice to advocate negligence of supervision theory under the situation of rising crime rate of the crimes of dereliction of duty in reform period of our present society. |
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Abstract 4-8 Abstract 8-17 Introduction 17-21 the first chapter of dereliction of duty Introduction 21-47 < br /> the concept and classification of an offense of misconduct 21-27 (a) the origins of the offense of misconduct and its concepts defined 21-25 (b) the offense of misconduct Category 25-27 History of the crime of dereliction of duty and its legal regulation 27-39 (a) the legislation of the ancient Chinese of dereliction of duty 27 - 34 (b) the legislation of the modern offense of misconduct 34-35 (c) the offense of misconduct in the founding of New China legislation 35-39 Offenses of Malfeasance in the legislative 39-47 (a) the legislative status and characteristics of the foreign offense of misconduct 39-41 (b) comparative analysis of Chinese and foreign offense of misconduct criminal legislation 41-47 Chapter II of dereliction of duty of legal interest.; 47-61 First, the legal interest as defined in theoretical premise 47-50 (a) legal interest against said criminal nature 47-49 (b) legal interest with the object of a crime 49-50 Second, the crime of dereliction of duty legal interest (object of a crime) view Introduction and Review 50-54 (a) of the crime of dereliction of duty legal interest (object of a crime) point of view introduced 50-52 (b) point of view Review of the legal interests of the crime of dereliction of duty (object of a crime) 52 - 54 Third, the ontology of the legal interests, of dereliction of duty, as defined in 54-61 (a) The legal interest as defined in the basic principles of 54-56 (b) of dereliction of duty legal interest to redefine 56-61 Chapter III of dereliction of duty Elements 61-90 First, the objective elements 61-73 (a) illegal elements of the crime of dereliction of duty - dereliction of duty and 61-66 (b) the punitive elements of the crime of dereliction of duty - harm results 66-73 two, the main elements of 73-82 (a) The legislative evolution of the main body of the crime of dereliction of duty 73-76 (b) of the crime of dereliction of duty main essential characteristics 76-80 ( c) entrusted to engage in public service to understand 80-82 Third, the subjective element 82-90 (a) compound the sin theory questioned 82-86 (b) the commencement of a single sin theory 86-90 Chapter malfeasance crime of a problem is 90-119 a crime of dereliction of duty FORM OF 90-96 the meaning of (a) of the specific crime of dereliction of duty results 90-92 (b) the acts committed in the crime of dereliction of duty accomplished attempted identified 92-96 < br /> the two of dereliction of duty accomplice 96-102 (a) no identity with the identity of those accomplices constitute 96-98 (b) the identity of those have the identity of an accomplice of qualitative 98-100 (c) commitment to the responsibilities of relevant personnel in the crime of dereliction of duty 100-102 Third, the number of the crime of dereliction of duty 102-109 (a) the favoritism class malfeasance Offence Numbers analysis Units 102-107, (b) Principle of Punishment of the crime of dereliction of duty Implicated interpretation 107-109 4, the case of the problem before the crime of dereliction of duty 109-115 (a) the former case the standard theory analysis 109-112 (b) before and after the case 'under the jurisdiction of the lack of phase separation and solving way 112-115 five, the crime of dereliction of duty Lapping of Legal Provisions 115-119 (a) of the Penal Code 397 and 398 to 419 law relationship 115-116 (b) the applicable principles of the crime of dereliction of duty Lapping of Legal Provisions 116-119 Chapter dereliction of duty and practical problems are described.; 119-146 one, the legislature shall 119-125 (a) The criminal legislation of the dereliction of duty in China 119-121 (b) foreign criminal legislation on the dereliction of duty 121-125 Second, dereliction of duty and duty of care seminars 125-130 (a) the general duty of care theory 125 -127 (b) of dereliction of duty, duty of care 127-130 objective aspects of dereliction of duty to explore 130-138 (a) neglect of duty seriously irresponsible behavior comb 130-133 (b) identified 133-138 four, examine the causal relationship of dereliction of duty 138-146 (a) the causal relationship between theoretical reflection 138-141 (b) of the objective imputation theory application analysis 141-146 Chapter VI crime of abuse of The practical problems are described 146-165 First, the legislation shall say 146-150 (a) of the criminal legislation on the crime of abuse of power 146-147 < br /> (b) of the foreign criminal legislation on the crime of abuse of power 147-150 Second, the abuse of power offense for consideration 150-154 (a) duties within the competence of abuse 150-152 (b) beyond the abuse of official authority 152-154 crime of abuse of sin Discrimination 154-159 (a) the theoretical differences and comment 154-157 (b) The crime of abuse of sin is a deliberate argument 157-159 four, the crime of abuse of the Concept of dereliction of duty of the boundary points, 159-165 (a) the Concept of 159-162 (b) the boundaries with dereliction of duty 162-165 Chapter VII of the practical problems of favoritism crimes are described 165-183 First, the legislation takes that 165-168 (a) of about favoritism sin criminal legislation 165-166 (b) of the foreign criminal legislation on the sin of favoritism 166-168 , the sin of favoritism main judgments 168-172 < br /> (a) whether the supervising officer to constitute the crime 169-170 (b) whether the judicial professional and technical personnel can constitute the crime of 170-171 (c) clerk, whether the back office can constitute the crime 171-172 three favoritism sin sin explain 172-177 (a) favoritism, partiality problem 172-176 (b) indirect intentional problem 176-177 Fourth, the objective aspect of favoritism crime doubts 177-183 (a) on the advantage of his position convenience 177-179 (b) the prosecution 179-181 (c) not as a 181-183 Chapter VIII of dereliction of duty Legislative Perfection 183-196 , the deficiencies of the existing legislation of the crime of dereliction of duty 183-189 (a) legislation on the subject of crime defects 183-185 < br /> (b) legislative defects on the punishment to 185-186 (c) defects of the legislation on sin 186-187 (d) on the favoritism class of dereliction of duty Legislative Defects 187-189 Second, to improve the legislative proposals of the offense of misconduct 189-196 (a) the legislation improve on the main body of the crime of dereliction of duty 189-191 (b) improve the legislation on the punishment to 191-192 (c) improve the legislation on the sin 192-193 (d) other related issues legislative perfect 193 (e) advocate supervision and negligence theories of legislative suggestions 193-196 References 196-204 reading results of academic research 204-205 Postscript 205 |
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