First, how to identify the crime of dereliction of duty
Article 168 The crime of dereliction of duty committed by personnel of state-owned companies, enterprises and institutions and the crime of abuse of power committed by personnel of state-owned companies, enterprises and institutions. Staff members of state-owned companies and enterprises who are seriously irresponsible or abuse their powers, resulting in bankruptcy or serious losses of state-owned companies and enterprises and heavy losses of national interests, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever causes particularly heavy losses to the interests of the state shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
Staff members of state-owned institutions who commit the acts mentioned in the preceding paragraph, thus causing heavy losses to national interests, shall be punished in accordance with the provisions of the preceding paragraph. Staff members of state-owned companies, enterprises and institutions who commit the crimes mentioned in the preceding two paragraphs for selfish ends shall be given a heavier punishment in accordance with the provisions of the first paragraph. (Article 2 of the First Amendment) Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Obstruction of the Prevention and Control of Sudden Infectious Diseases. Article 4 In the prevention and control of sudden infectious diseases and other disasters, the staff of state-owned companies, enterprises and institutions are seriously irresponsible or abuse their powers, resulting in bankruptcy or serious losses of state-owned companies and enterprises. Those who cause great losses to the interests of the state shall be convicted and punished for the crime of dereliction of duty or abuse of power by personnel of state-owned companies, enterprises and institutions in accordance with the provisions of Article 168 of the Criminal Law. The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Cases Disrupting the Order of Telecommunication Market Management.
Article 6 A staff member of a state-owned telecommunications enterprise who is seriously irresponsible or abuses his power, resulting in bankruptcy or heavy losses of the state-owned telecommunications enterprise and heavy losses to the national interests, shall be convicted and punished in accordance with the provisions of Article 168 of the Criminal Law. Interpretation of the Supreme People's Court on How to Identify the Personnel of State-owned Holding and Shareholding Companies in China 2005-08- 1 1 Personnel appointed by state-owned companies and enterprises to engage in official business in state-owned holding and shareholding companies are regarded as personnel of state-owned companies and enterprises.
Second, the constitutive elements of the crime of dereliction of duty
(1) Object Elements The object of this crime is the property rights and interests of state-owned companies and enterprises and the socialist market economic order. State-owned companies and enterprises play an important role in social and economic life. The staff of state-owned companies and enterprises deviate from the basic principles of market activities and engage in malpractices for selfish ends, which will inevitably undermine the normal activities of state-owned companies and enterprises, harm the interests of the country and the people, and thus undermine the socialist market economic order.
(II) Objective Elements This crime is objectively manifested in the acts of serious irresponsibility or abuse of power by the staff of state-owned companies and enterprises, resulting in bankruptcy or serious losses of state-owned companies and enterprises, resulting in heavy losses of state interests, and the acts of serious irresponsibility or abuse of power by the staff of state-owned institutions, resulting in heavy losses of state interests. As far as the direct executives of state-owned companies and enterprises are concerned, they mainly have the following performances: they don't respect objective economic laws, don't do feasibility analysis and demonstration of market demand, don't listen to opinions from all sides, and act arbitrarily, leading to major mistakes in business decisions; Management confusion, imperfect rules and regulations, turning a deaf ear to the illegal and criminal phenomena of harming the public and enriching the private, turning the public into private, embezzling, encroaching, dividing up and misappropriating the company and enterprise property; Failing to take the initiative to report the case to the judicial organ in time after being cheated for various reasons in economic exchanges; Speculation of stocks and futures with enterprise funds in violation of regulations; Approving loan funds in violation of regulations, etc. This crime is a consequential offense and an act of favoritism. Only when state-owned companies and enterprises go bankrupt or suffer serious losses, and the national interests (staff of state-owned companies and enterprises) suffer heavy losses, will it constitute a crime. The so-called serious loss means that the losses of state-owned companies and enterprises are enough to make them lose the ability to pay off their due debts. There are many reasons for serious losses, including poor management, natural and man-made disasters, force majeure and so on. However, the "serious loss" that constitutes the objective aspect of this crime can only be caused by the dereliction of duty of the directly responsible person in charge of the enterprise. The so-called bankruptcy refers to the behavior of state-owned companies and enterprises that are unable to pay off their debts due to serious losses and are declared bankrupt by the people's court according to law upon the application of creditors or debtors. The so-called insolvency here is an objective state in which state-owned companies and enterprises lack the ability to pay off debts. The debtor is generally unable to pay off the debts that have expired, and the creditor requests to pay off for a certain period (non-individual circumstances) and continue (non-temporary, short-term circumstances). Here we should pay attention to the following four questions:
(1) Correct judgment of solvency. Liquidity usually consists of capital, credit and productivity (technology, equipment and materials, labor, etc.). ). Only when these three conditions are not met at the same time and there is a lack of ability to continue to pay off debts can it be considered insolvent.
(2) The debt that cannot be paid off must be the debt that has expired and the creditor demands that it cannot be paid off;
(3) The debts that cannot be paid off must be general and persistent. The so-called general means that there are many repayment objects, not a single creditor. The so-called sustainability refers to the sustainability of inability to repay, which must last for a long time. Because the capital turnover can not be paid off temporarily, it can not be considered insolvent;
(4) Insolvency is an economic state that the debtor can't pay off objectively. It has nothing to do with the debtor's subjective judgment and will, and is different from the debtor's intentional stop. The act of engaging in malpractices for selfish ends must also cause great losses to the national interests in order to constitute this crime. Generally speaking, it has caused bankruptcy and serious losses of state-owned companies and enterprises, that is, it has caused great losses of national interests, but it still needs further identification by the competent authorities.
(III) Subject Elements The subject of this crime is a special subject, that is, the staff of state-owned companies, enterprises and institutions, and other subjects do not constitute this crime.
(IV) Subjective Elements The subjective aspect of this crime can only be constituted by indirect intention and negligence. Although the actor's behavior has direct intention, it is not direct intention for the result of causing great losses to the national interests, that is, he does not want state-owned companies and enterprises to go bankrupt or suffer serious losses. Most of the damage results are due to negligence, and indirect intention is not excluded.
Third, dereliction of duty.
It refers to the behavior that staff members are not serious and responsible for their jobs and do not perform their duties according to regulations, causing losses to units or clients. Dereliction of duty can also constitute a crime. When the actor is a staff member of a state organ or a state-owned enterprise, dereliction of duty causes serious losses, which constitutes the crime of dereliction of duty.
Fourth, the crime of dereliction of duty.
The crime of dereliction of duty refers to the behavior that the staff of state organs abuse their powers, neglect their duties, engage in malpractices for selfish ends, hinder the normal management activities of state organs, and cause great losses to the interests of the state and the people.
Five, the characteristics of dereliction of duty are:
First of all, the subject of crime is a special group, that is, the staff of state organs (there is only one crime that non-state organs can constitute, that is, the crime of revealing state secrets stipulated in Article 398 of the new Criminal Law).
Secondly, the crime of dereliction of duty has both intention and negligence subjectively. The dozens of crimes stipulated in it can be divided into three categories:
1. Crimes that can only be constituted intentionally account for the vast majority of dereliction of duty, such as the crime of favoritism and malpractice, and the crime of releasing detainees without permission.
2. Crimes that can only be constituted by negligence;
3. Crimes that can be constituted by intention and negligence.
Third, the object of the crime of dereliction of duty is the normal activities of state organs. The so-called state organs include power organs at all levels, administrative organs at all levels, judicial organs at all levels and military organs at all levels.
Fourth, dereliction of duty can be implemented in the form of "act" or "omission", but no matter which form, the behavior of the actor is closely related to his position.
Sixth, the crime of dereliction of duty.
It is not a crime, but a classification of crimes in the specific provisions of the criminal law, which is listed in Chapter 9 of the specific provisions. * * * 33 crimes. Chapter IX uses the word "dereliction of duty" in seven crimes, such as: dereliction of duty leading to the escape of detainees, dereliction of duty in signing and performing contracts, dereliction of duty in environmental supervision, negligence in the prevention and control of infectious diseases, negligence in commodity inspection, negligence in animal and plant quarantine, negligence in the loss of precious cultural relics, etc.
We understand that although dereliction of duty and dereliction of duty are similar, they are quite different in nature. Dereliction of duty is not responsible for one's current work, while dereliction of duty is abuse of power and bending the law, so there is a great difference between these two crimes. Therefore, penalties vary from country to country. If you have any other questions about this crime, you are welcome to seek professional legal advice.