Research on the Constitution of Dereliction of Duty Crime

Author: Jia Jidong
Publisher:
Publish Date: 2005-02-01
Features: This book introduces the characteristics of foreign legislation on dereliction of duty and the development of domestic legislation, and conducts an in-depth analysis of the concept, composition, and judicial determination of dereliction of duty in China's criminal law, proposing suggestions for legislative improvement. It is suitable for reference by legal researchers and judicial practitioners. The basic theory of dereliction of duty is not only an important part of criminal law theory but also a highly debated issue in judicial practice. Building on an introduction to the characteristics of foreign legislation on dereliction of duty and the development of domestic legislation, this book provides an in-depth analysis of the concept, composition, and judicial determination of dereliction of duty in China's criminal law and proposes suggestions for legislative improvement. Except for the introduction, the book is divided into seven chapters. The introduction analyzes the current status of criminal legislation, judicial practice, and theoretical research on dereliction of duty in China, revealing the theoretical significance and practical value of studying certain issues in the composition of dereliction of duty. It helps improve ideological awareness, improve the law enforcement environment, correctly guide judicial practice, continue to promote legislative improvement, and deeply explore criminal law theory and the thorough implementation of criminal policies.
Chapter 1 first introduces the general provisions of foreign criminal law on the meaning and scope of dereliction of duty, offenses, subjects, and types of penalties, then describes the legislative trajectory of dereliction of duty crimes in China, reviews the provisions on dereliction of duty in the 1979 Criminal Law and the subsequent social development and legislative improvement of dereliction of duty, analyzes the amendments to the chapter on dereliction of duty in the 1997 revised Criminal Law, elaborates on the concept and legal characteristics of dereliction of duty, and classifies dereliction of duty from various perspectives, including forms of fault, manifestations of behavior, requirements for subjects, objects of crime, legislative forms, and forms of completion.
Chapter 2 examines the subject of dereliction of duty, reviewing the legislative evolution of the subject of dereliction of duty and pointing out that the scope of the subject of dereliction of duty in China has been fluctuating in both legislation and interpretation: from the early years of the founding of the People's Republic of China to the 1997 revised Criminal Law, its evolution followed a trajectory from broad to narrow, from abstract to specific; since the implementation of the revised Criminal Law, legislative and judicial interpretations have further expanded the scope of application of the subject of dereliction of duty, showing a trend of returning to the 1997 Criminal Law. This chapter analyzes judicial and legislative interpretations on the subject of dereliction of duty and conducts an in-depth discussion on the scope and essence of the subject of dereliction of duty. It argues that the term "state organ" referred to in Article 93 of the 1997 Criminal Code refers to central and local organizations engaged in state management and the exercise of state power, with independent operational funds provided by the state budget. These include organs of power, administrative organs, procuratorial organs, judicial organs, and various levels of military systems. Personnel of state organs not only include those engaged in public affairs within state organs but also those who exercise state administrative power in organizations stipulated by laws and regulations, those who engage in public affairs in organizations that exercise public affairs power on behalf of state organs, and those who engage in public affairs in state organs without being included in the personnel roster. Regarding the connotation of the subject of dereliction of duty, i.e., the essence of "personnel of state organs," it should adhere to a "new theory of public affairs" that combines qualification, responsibility and power, and the performance of public affairs in the name of duty as a tripartite unity.
Chapter 3 reviews various theories on the forms of fault in dereliction of duty and argues that the forms of fault for each crime stipulated in the chapter on dereliction of duty in the criminal code are singular, either intentional or negligent, with the majority being intentional and the minority negligent. Among them, dereliction of duty crimes involving the abuse of power (including those involving private gain) are intentional crimes, while dereliction of duty crimes involving negligence are negligent crimes. The chapter focuses on exploring various theories and judicial recognition stances on the forms of fault for crimes of abuse of power and negligence of duty.
Chapter 4 outlines the basic characteristics, forms, and main types of dereliction of duty crimes, analyzing the manifestations and determination of neglect of duty, abuse of power, and private gain. Regarding neglect of duty, it is believed to include two basic forms—action and inaction—as well as three types: abandoning one's post, negligence of duty, and failure to fulfill duty. In judicial recognition, attention should be paid to: not equating neglect of duty with inaction; not ignoring the relevance of duty. Regarding abuse of power, this chapter analyzes its connotation, scope of formation, concept, and characteristics, arguing that it includes two basic forms—action and inaction—as well as three types: intentionally exceeding power, intentionally incorrectly performing duties, and intentionally abandoning duty. In judicial recognition, attention should be paid to: not excluding inaction from abuse of power; not examining abuse of power in isolation from duty; intentionally incorrectly performing duties includes both substantive and procedural authority; the establishment of abuse of power does not depend on whether the other party recognizes it as the exercise of power. That is, as long as the act of abuse of power is implemented, whether it is done openly or secretly, and whether the other party is aware or not, it does not affect the determination. This chapter also conducts an in-depth study on issues such as the status and connotation of "private gain" in private gain, the connotation, terminology, scope, nature, and determination standards of "previous cases." It argues that "private gain" should be understood in a broad sense, including not only personal private feelings and interests but also those of units and small groups. It also argues that the nature of "previous cases" is neither a criminal case or criminal nor a general act or person, nor can it be simply equated with suspected criminal acts or suspects. Instead, it is the acts or persons that serve as the prerequisite for the establishment of criminal liability for dereliction of duty. The correct standard for determining "previous cases" suspected of criminal liability should be: evidence proving criminal facts and the need to hold criminal liability, based on relevant provisions of the Criminal Law and the Criminal Procedure Law.
Chapter 5 analyzes the concept, characteristics, and classification of the result of dereliction of duty, and conducts an in-depth study on the determination standards, principles, and scope of major loss results, the calculation period of direct economic losses, and the determination of claims losses, interest losses, and the recovery of economic losses. The result of dereliction of duty studied in this chapter, i.e., the harmful result of dereliction of duty, refers to the specific harm caused by dereliction of duty to the normal management activities of state organs and the legitimate rights and interests of the public or citizens. Its characteristics are four: (1) the result of dereliction of duty is caused by dereliction of duty; (2) the result of dereliction of duty is actual damage to the object of crime; (3) the result of dereliction of duty is a necessary harmful result for the establishment of a specific crime of dereliction of duty; if the dereliction of duty does not cause this specific result, it does not constitute a crime; (4) the result of dereliction of duty is diverse. Based on the characteristics and manifestations of the result of dereliction of duty, it can be divided into material and non-material results, direct and indirect results, and other categories. Regarding the determination standard of major losses in dereliction of duty crimes, this paper adopts the ternary standard theory, which theoretically analyzes the losses of dereliction of duty by comprehensively applying qualitative, quantitative, and combined qualitative and quantitative standards. Regarding the principle of determining major losses, it is proposed that when determining the amount of loss, attention should be paid to the relationship between a certain amount of loss and social harm. At the same time, it should be recognized that the amount of loss is an important basis for the conviction and sentencing of dereliction of duty crimes but not the only basis. Regarding the determination time of direct economic losses, it is proposed that it should be based on the time when the procuratorial organ lawfully initiates an investigation.
Chapter 6 studies the concept, characteristics, nature, and forms of the causal relationship in dereliction of duty crimes, and proposes methods for judging the causal relationship in dereliction of duty crimes. It argues that the causal relationship in dereliction of duty crimes refers to the causal link between dereliction of duty and the result of dereliction of duty. It has the characteristics of objectivity, relativity, sequence or simultaneity, complexity, diversity, and specificity. Its nature is the unity of necessity and accident, that is, the causal relationship between dereliction of duty and the result of dereliction of duty has a necessary nature from one perspective and an accidental nature from another. However, this unity of necessity and accident does not exclude the formal division of the causal relationship of dereliction of duty crimes into necessary and accidental causal relationships. From the perspective of the nature of the causal relationship, it can be divided into necessary and accidental causal relationships; from the perspective of the degree of causal connection, it can be divided into direct and indirect causal relationships; from the perspective of the singularity or plurality of the causal act or the intervention of new causes in the causal development process, it can be divided into simple, complex, and interrupted causal relationships. This chapter analyzes the theories and methods of judgment on criminal causal relationships in the civil law system and the common law system, pointing out that in judging the causal relationship of dereliction of duty crimes, attention should be paid to: (1) determining the order of examination, identifying causal phenomena or result phenomena; (2) examining step by step according to different levels; (3) grasping the degree of indirect causal relationships; (4) distinguishing between criminal causal relationships and pathological causal relationships; (5) the causal relationship of negligence of duty crimes must be recognized in connection with "duty."
Chapter 7 explores the legislative improvement of dereliction of duty crimes. Regarding the subject, it is proposed that the subject of dereliction of duty crimes be revised to "public affairs personnel," i.e., personnel engaged in the management of state affairs, public affairs, and social affairs. Regarding the form of fault, it is proposed that intentional and negligent faults be explicitly stipulated and separately stipulated. Regarding the description of the crime, it is proposed that the status of "private gain," "serious circumstances," and "harmful results" in the description of the crime be appropriately revised. Regarding the form of completion, it is proposed that Article 397, Paragraph 1 of the Criminal Law be revised, changing the crime of abuse of power from a result-based crime to an act-based crime, and stipulating that cases where abuse of power creates a dangerous situation or serious consequences be treated as circumstances for enhanced punishment; the crime of negligence of duty involving public safety and public harm crimes be changed from a result-based crime to a danger-based crime, and cases where negligence of duty causes serious consequences be treated as circumstances for enhanced punishment. At the same time, based on a summary of judicial practice, corresponding revisions are made to other provisions of the chapter on dereliction of duty. Regarding the prescribed penalties, it is fully discussed the imbalance and improvement of prescribed penalties for intentional and negligent crimes, the coordination of general and special provisions of prescribed penalties, the balance of penalties for crimes by general and special subjects, the adjustment of the degree of social harm and the severity of penalties, and the addition of provisions for property and qualification penalties.