1. The object of the crime of "heavy losses" and abuse of power?
(1) "Significant loss"-objective excess factor or objective punishment condition?
Article 397 of the Criminal Law stipulates that heavy loss is a necessary component of the crime of abusing power. Abuse of power must cause heavy losses in order to constitute the crime of abuse of power. The situation of heavy losses directly affects the understanding of the object of the crime of abuse of power, the determination of subjective guilt and other major issues. According to the Supreme People's Procuratorate 1998 "Provisions on Several Amount and Quantity Standards for Procuratorial Organs to Directly Accept Cases on File for Investigation", "major losses" should include: first, death 1 person or more, or serious injury of 3 people or minor injury1person or more; Second, it caused direct economic losses of more than 654.38 million yuan; Third, although the direct economic losses and casualties are less than the prescribed amount or quantity standard, they have other serious circumstances. Is the heavy loss the result of consequential crime, or is it an objective punishment condition or an objective transcendence factor as some scholars have alleged? Some scholars believe that combined with the basic theory of criminal results, the immateriality of the criminal results of abuse of power is inferred from the normal management activities of state organs, and the "heavy losses" stipulated by law are beyond the scope of destroying the management activities of state organs. It is further concluded that if a state is to be set for "significant loss", it can only be an objective punishment condition. (2) The objective penalty conditions refer to the objective external reasons that determine the launch of the penalty right and go beyond the constitutive requirements of the crime. This concept deviates from the basic principle of the unity of subject and object in our criminal law and is rejected by our criminal law theory. Therefore, some scholars put forward "objective factors exceed" instead of "objective punishment conditions", and think that the objective factors that exceed the harmful results only exist in crimes with double harmful results, which are mainly manifested in four situations: when material results and intangible results coexist; When the hazard state and the actual hazard result coexist; When the harmful result without specific object and the harmful result for specific object coexist, when the direct harmful result and the indirect harmful result coexist. (3) We believe that there is no essential difference between objective transcendence factors and objective punishment conditions, and its contradiction with the principle of unity of subjective and objective has not been overcome as advocated by commentators. If it is handled in a coupled four-factor system, it is also difficult to solve the problem of objective transcendence. As for seeking an objective solution to the confusion that guilt is difficult to identify, I am afraid there is no law. The crime of abuse of power is a generalized consequential crime, and heavy losses are its necessary elements. Therefore, heavy losses are the inevitable result of the crime of abuse of power, not objective transcendence factors or objective punishment conditions. ?
(2) "Public interest"-the secondary object of the crime of abuse of power?
Theoretical and practical circles have different understandings of the object of the crime of abuse of power. First, the complex object theory. Some scholars believe that it violates the normal activities of state organs and the legitimate rights and interests of citizens and social organizations such as personal rights and property rights; (4) Another view is that its main object is the normal management activities of state organs, which often infringe upon the legitimate rights and interests of citizens or the socialist economic order. (5) Second, simple object theory. In other words, it just violates the normal management activities of state organs. (6)
How to define the object of the crime of abuse of power needs to analyze the constitutive elements of the crime of abuse of power on the basis of the basic theory of criminal law in China. According to the basic theory of China's criminal law, the object of crime is a socialist social relationship protected by criminal law, which has both normative elements and formal elements. It can be described from different aspects, such as the clear provisions of the law, material expression, the undertaker of social relations, the law violated by the act, and the specific form of the act. Dereliction of duty is the essential feature of the crime of abusing power, which should be judged on the basis of laws, regulations and rules aimed at adjusting the normal management activities of state organs. From the fact that abuse of power must violate such laws, regulations and rules, it can be defined that the criminal object of abuse of power must include social relations reflected in the normal management activities of state organs. This is also a similar object of dereliction of duty. (7) ?
When investigating whether criminal infringement is a complex object, we should start from the following two aspects: first, any case will inevitably infringe on more than two social relations; Secondly, reflecting the behavior or result of complex objects is an essential element of a crime. This standard is the recognition of complex objects from different aspects. As far as the crime of abuse of power is concerned, it is a consequential crime, and (8) "great loss" is the necessary result element. The crime of abuse of power infringes on the social relations embodied in the normal management activities of state organs, and inevitably infringes on the legitimate rights and interests of citizens and social organizations, such as personal rights and property rights (and sometimes infringes on the social and economic order), thus deeply infringing on the social relations embodied therein. On the other hand, the above-mentioned heavy loss of rights and order is an essential result element of the crime of abuse of power, and it is also a comprehensive evaluation of the quality and quantity of abuse of power, reflecting the degree of harm caused by the normal management activities of state organs. Therefore, we believe that the social relations embodied in the aforementioned rights and order should also be the object and secondary object of the crime of abuse of power. How to summarize this important object, we can cite a comprehensive object concept similar to "public safety"-"public interest" relationship. (9) Whether this concept is scientific or not needs further study. ?
On the premise of recognizing "heavy loss" as the essential result, those who hold simple objectivism only regard it as a qualitative and quantitative evaluation of the social harm of abuse of power, ignoring its nature as a carrier of "public interest" Those who hold complex object theory describe the main object as the normal management activities (or normal activities) of state organs, without revealing the essence of their "social relations"; On the issue of secondary object, there is no concise summary, which is too general. Lose one-sidedness Therefore, it is necessary to have a unified understanding on the basis of the above analysis: the criminal object of the crime of abuse of power is a complex object, its main object is the social relationship reflected by the normal management activities of state organs, and the secondary object is the "public interest" relationship. ?
Second, compound crime or single crime-the subjective elements of the crime of abuse of power?
(1) Compound crime or single crime?
There is a dispute between the theory of single crime and the theory of compound crime about the form of crime of abusing power. According to the specific content, the theory of single crime can be divided into intentional theory and negligence theory: intentional theory advocates that the subjective aspect of abuse of power is intentional, including direct intention and indirect intention; (10) negligence theory holds that the subjective aspect of the crime of abuse of power is negligence, and the result of "heavy loss" can only be negligence. (1 1) The theory of compound crime can be divided into three views according to different specific opinions: some scholars believe that the subjective aspect of the crime of abuse of power can be indirect intention or negligence, mostly indirect intention; (12) Another scholar argues that the basic form of the crime of abuse of power is negligence, and the aggravated form is indirect intention. (13) Some scholars advocate reconstructing the criminal form in China's criminal law theory and creating a "compound criminal form" to interpret the cross-disciplinary criminal form in the same article. Whether (14) is a single crime or a compound crime, or it has not been discussed in depth, or the scope of crime has been improperly expanded, or the legislative intent has been misinterpreted, which is worth discussing. The first view correctly defines the crime of abuse of power as intentional crime, and infers that it includes direct intention and indirect intention, but does not discuss in depth whether direct intention actually exists; The second view is demonstrated from the theory of intention, but in the end, only from the analysis of statutory punishment, crime can only be negligence; The third view inappropriately extends the crime of abuse of power to negligence, but it is not elaborated; The fourth view is that indirect intention can only be motivated by selfishness and it is difficult to stand on its own feet; The fifth point of view is that whether the compound crime form is scientific or not needs further study. However, there is no need to define the crime of abuse of power. ?
We believe that we should not only study the basic principle of crime, but also explore the legislative intention of identifying the form of crime. This actually requires us to analyze Article 397 of the Criminal Law, study how to distinguish the crime of abuse of power from the crime of dereliction of duty, and gradually limit the scope of the crime of abuse of power. ?
(2) Analysis of Article 397 of the Criminal Law-Comparison of the behavioral elements of the crime of abuse of power and the crime of dereliction of duty?
Both the crime of abuse of power and the crime of dereliction of duty take "heavy loss" as the necessary result element, and the difference between the two objective elements is mainly in the behavior element. Some scholars divide it into two different categories: abuse of power is positive and dereliction of duty is negative. (15) Whether this division is appropriate or not needs to be considered from the behavioral elements of the crime of abuse of power. ?
The controversy over the connotation of abuse of power focuses on whether omission is included. In other words, is it an abuse of power to give up one's duties? Most domestic scholars define the abuse of power as positive behavior, which includes two situations: "ultra vires exercise" and "illegal exercise". (16) We believe that the abuse of power should include inaction. First of all, from the basic point of hermeneutics-semantic interpretation, "abuse" means recklessness, and "utilization" means utilization. Abuse of power can be manifested as breaking the law and actively exceeding the authority to exercise power; It can also be manifested as illegal and passive abandonment of the functions and powers that should be exercised. Secondly, considering the legislative intent, we have long treated the behavior of absent without leave or failing to perform our duties as a crime of dereliction of duty. As for the illegal exercise and abandonment of power out of intentional psychological overstepping, there is no explicit provision in the criminal law, but this kind of behavior is more and more in judicial practice. Neither the traditional criminal law theory nor the old criminal code can give a satisfactory explanation for the above behavior. In the process of theoretical discussion on the revision of criminal law, some scholars suggested adding the crime of abuse of power and the crime of giving up power from the perspective of distinguishing it from the crime of dereliction of duty. (17) 1997 criminal code establishes the legislative example of the crime of abuse of power based on the above understanding, and its behavior elements naturally include two situations: illegal exercise of power beyond authority and abandonment of power. Admitting the crime of abuse of power only stipulates positive actions, and it is inappropriate in theory and practice to give up power out of intentional psychology or to treat it as dereliction of duty or acquittal. Therefore, it is one-sided to limit the abuse of power to positive behavior and further divide it into "ultra vires exercise" and "illegal exercise". Even more inappropriate. The implication is that ultra vires exercise is not illegal exercise, and the two are clearly defined. In practice, the functions and powers are stipulated by administrative regulations, and the exercise of ultra vires is illegal. (18) Abuse of power should include actions and omissions. ?
Abuse of power includes active ultra vires and illegal exercise of power and passive abandonment of power. Dereliction of duty According to Ci Hai, "playing" means "not taking it seriously and using it wrongly". Dereliction of duty in the traditional sense is in terms of negligent crime. In the old criminal law, there were both objective and subjective aspects. With the development of judicial practice, it is difficult to be inclusive. Some scholars suggest that the original crime of dereliction of duty should be defined as four charges: (1) the crime of abuse of power refers to the act of deliberately exceeding the power and the circumstances are serious. Subjectively, the form of this crime is intentional, objectively, it is an act. (2) The crime of intentional failure to perform duties refers to the intentional failure to perform the duties that should and can be performed, and the circumstances are serious. The subjective form of this crime is intention, and the objective behavior is omission. (3) The crime of negligence exceeding authority refers to the act of negligence exceeding its authority and the circumstances are serious. The subjective form of this crime is negligence, and the objective behavior is action. (4) The crime of negligent failure to perform duties refers to negligent failure to perform the duties that should and can be performed, and the circumstances are serious. (19) 1997 criminal code actually integrates the first two crimes with the crime of abuse of power, and summarizes the last two crimes with the crime of dereliction of duty. Therefore, we believe that the crime of abuse of power and the crime of dereliction of duty cannot be distinguished from the objective behavior elements.
(3) Analysis of the crime of abuse of power?
In the identification of criminal forms, the theory of result standard is adopted in the theory and practice of criminal law in China, that is, the actor's psychological attitude towards the criminal result. Specifically, the crime of abuse of power refers to the psychological attitude of the perpetrator that the direct and intentional result of "great loss" is the crime of dereliction of duty, which is related to the identity of the subject of the crime, that is, the staff of state organs. State functionaries enjoy certain rights and responsibilities in their official activities. Although they abuse their power or neglect their duties, they do not have the psychological attitude of actively pursuing or hoping for the possible harmful results to society subjectively. If it is a direct and intentional abuse of power, it may constitute other crimes rather than abuse of power. Therefore, direct intention is not allowed in the form of abuse of power, and the discussion on whether negligence psychology can exist in the form of abuse of power is controversial. ?
Whether negligence psychology is the form of crime of abusing power should explore the reasons for legislation and the ontological significance of legal norms. In the discussion of amending the criminal law, it is considered that the difference between the crime of abuse of power and the crime of dereliction of duty is an important reason for adding this crime. (20) The traditional criminal law theory has always defined the crime of dereliction of duty as negligence, so there should be no negligence psychology different from the crime of dereliction of duty in the crime of abuse of power. The Criminal Law combines the crime of abuse of power and the crime of dereliction of duty in the form of one article and two paragraphs. It is difficult to distinguish the two crimes in objective elements, so the key to distinguish the two crimes lies in the subjective aspect. Another scholar thinks that "the sin form of dereliction of duty is negligence, and the sin form of abuse of power is intentional" from the perspective of legislative value. (2 1) argument is appropriate, but it needs further study. In practice, those who abuse power have greater initiative. Whether it is actively exceeding the authority or passively giving up the authority, the actor knows the way of abuse and the result of "great loss", thus ruling out the possibility of negligence. As for the positive ultra vires exercise of power and negative abandonment of power under the control of overconfident negligence psychology, they should be convicted of dereliction of duty, which is determined by the legislative purpose of separating the crime of abuse of power from the crime of dereliction of duty. ?
To sum up, we believe that expanding the form of the crime of abuse of power to negligence will inevitably blur the boundary between the crime of abuse of power and the crime of abuse of power, which is not only inconsistent with the general public concept, but also contrary to the original legislative intent, which is not conducive to the correct identification of the crime of abuse of power and the crime of dereliction of duty in judicial practice. Therefore, the crime of abuse of power should be limited to indirect intention, that is, on the premise of foreseeing the possibility of "heavy loss", we should adopt a laissez-faire psychological attitude towards the result. ?
Third, the relationship between internal and external laws and regulations of the crime of abuse of power?
There are different understandings about how to understand Article 397 of the Criminal Law: most scholars advocate two crimes, namely, the crime of abuse of power and the crime of dereliction of duty in section 1, and the aggravated crime in section 2 of the preceding paragraph; A few scholars advocate three crimes, that is, 1 is the crime of abuse of power and dereliction of duty, and the second is the crime of favoritism. (22) Regarding the relationship between internal and external laws and regulations of the crime of abuse of power, there are two aspects that need to be discussed: one is the relationship between internal laws and regulations of 1997 criminal code, and the other is the relationship between 1997 criminal code and specific criminal law. ?
(1) 1997 What are the internal provisions of the Criminal Code?
Looking at the adjustment and modification of the specific provisions and contents in the new code, we can find that there are two ways to modify the chapter on the crime of dereliction of duty: one is to separate the crime of corruption and bribery from the original chapter on the crime of dereliction of duty and set up a special chapter. Secondly, the crime of dereliction of duty in a general sense is not only stipulated separately in the charges and statutory punishment of the crime of dereliction of duty by special subjects, but also included in the form of "small pocket crime" of dereliction of duty and abuse of power. Its legislative spirit is to prevent omissions in practice. Chapter 9 of the revised Specific Provisions of Criminal Law has formed a criminal legal norm system that combines the specific crime of dereliction of duty with the special provisions of dereliction of duty as stipulated in Articles 397 to 4 19. (23) It is debatable: First, the provisions of the crime of abuse of power by staff of non-state organs apply. 1997 criminal law limits the subject of the crime of abuse of power to the staff of state organs, that is, "the personnel engaged in public affairs in state organs". This subject restriction will inevitably lead to the abuse of power in the crime of dereliction of duty in 1979 criminal code, and the general and specific provisions of the crime of dereliction of duty cannot be applied because of the subject restriction. (24) The legislation has set up some provisions to remedy loopholes, but whether they can be remedied is worth further study. Therefore, if a non-state organ abuses its power and causes heavy losses, it should be punished as a crime or not. ?
(2) 1997 Relationship between Criminal Code and Specific Criminal Law-Understanding and Application of Article 6 of the Decision?
The National People's Congress Standing Committee (NPCSC) 1998 12.29 promulgated and implemented the Decision on Punishing Crimes of Foreign Exchange Fraud, Foreign Exchange Evasion and Illegal Trading (hereinafter referred to as the Decision), which is the first supplementary and revised single criminal law after the revision of the Criminal Law. Article 6 of the decision stipulates that "the staff of the customs and foreign exchange administration departments are seriously irresponsible, resulting in a large amount of foreign exchange being defrauded or evaded, resulting in heavy losses to the national interests, and shall be convicted and punished in accordance with the provisions of Article 397 of the Criminal Law." This clause clarifies the criminal responsibility of the staff of the customs and foreign exchange administration departments for serious irresponsibility, resulting in a large number of foreign exchange being cheated or evaded, and other major losses to the national interests. Some scholars believe that this provision specifically clarifies the legal application of dereliction of duty in customs and foreign exchange supervision. (25) We believe that whether this provision is necessary and how to operate it in judicial practice involves its understanding and application. ?
Article 6 of the "Decision" stipulates that the dereliction of duty of "staff of the customs and foreign exchange administration departments" in "fraudulent purchase and evasion of foreign exchange" shall be convicted and sentenced according to the crime of dereliction of duty or abuse of power in a general sense, which seems clear, but it is not necessary to repeat legislation. This is a waste of legislative resources, and it is also the embodiment of idealized criminal legislation thought in criminal substantive law. (26) Similar legislative provisions are also reflected in Articles 5 and 7 of the Decision. However, theoretical discussion cannot replace legislative provisions. In judicial practice, we must be convicted and sentenced in strict accordance with the law. Article 397 of the Criminal Law stipulates the crimes of abuse of power and dereliction of duty. There is no difference between the two crimes in subject, object and objective elements, and the key to the difference is the different forms of subjective sin. Abuse of power is indirect intention, and dereliction of duty is negligence. Article 6 of the Decision stipulates that the special dereliction of duty of the staff of the customs and foreign exchange administration departments shall be punished as the crime of dereliction of duty or abuse of power. It is not difficult to find that Article 6 of the Decision is actually diverse and mixed in terms of constitutive requirements: the main body is the staff of the customs or foreign exchange management departments; Subjectively, it includes both negligence and indirect intention; Objectively speaking, there are both abuse of power and dereliction of duty; Objectively, it is an infringement on social relations and "comprehensive interests" embodied in the normal management activities of state organs. The determination of the facts of this specific case should be analyzed in detail and not blindly preconceived. In conviction and sentencing, subjective fault is the standard to distinguish between indirect intention and negligence. Indirect intentional, shall be punished as the crime of abuse of power; Dereliction of duty shall be punished as dereliction of duty.
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The facts of a legal case
Public Prosecution Organ: Xiling District People's Procuratorate of Yichang City.
Defendant Zhou Songyu, male, born on August 4th, 1960, Han nationality, born in Tianmen City, Hubei Province, with a college education, was formerly the deputy director of Wuhan Customs Supervision Department and lived at No.3, 6th floor, No.28 Song Wan Community, Jianghan District, Wuhan City, Hubei Province. He was criminally detained on February 5, 2006 on suspicion of abuse of power and arrested on February 6 of the same year. He is now in Yichang detention center.
The People's Procuratorate of Xiling District, Yichang City accused that on a certain day in the second half of 1997, the defendant Zhou Songyu should be so-and-so. ...