The subject of the crime of dereliction of duty in our criminal law is the staff of state organs.
According to the Supreme People's Court's Notice on Printing and Distributing the Minutes of the Symposium on the Trial of Economic Crime Cases by National Courts, the staff of state organs refer to those who are engaged in public service in state organs, including those engaged in public service in state power organs, administrative organs, judicial organs and military organs at all levels.
According to the National People's Congress Standing Committee (NPCSC)'s Interpretation on the Subject Application of the Crime of Dereliction of Duty in Chapter IX of the Criminal Law, if a person who is engaged in public service in an organization that exercises state administrative functions and powers according to laws and regulations or is entrusted by a state organ to exercise functions and powers on behalf of the state, or a person who is not included in the establishment of a state organ but is engaged in public service on behalf of the state organ neglects his duty and constitutes a crime, he shall be investigated for criminal responsibility in accordance with the provisions of the Criminal Law on the crime of dereliction of duty.
Second, who is the subject of the crime of dereliction of duty?
1, staff of state organs. Strictly speaking, it refers to the staff of state organs, that is, those who are engaged in official duties in organs belonging to the sequence of state institutions according to the constitution, including state power organs, administrative organs, judicial organs, procuratorial organs, military organs and prisons. These organs, which are clearly defined as state organs in the Constitution, of course belong to state organs. If the dereliction of duty, abuse of power, favoritism and other dereliction of duty of its public servants in the exercise of state power constitutes a crime, criminal responsibility shall be investigated in accordance with the provisions of the Criminal Law on the crime of dereliction of duty.
2, in accordance with the provisions of laws and regulations in the exercise of state administrative functions and powers of the organization engaged in public service personnel. This kind of personnel refers to those who are engaged in public service in some non-state organs authorized by some laws and regulations to exercise state administrative functions and powers in some fields. Article 17 of the Administrative Punishment Law stipulates: "Organizations authorized by laws and regulations to manage public affairs may impose administrative penalties within the scope of statutory authorization". In some laws and regulations, it is stipulated that some units that are not state organs exercise administrative functions. For example, according to the Insurance Law, the financial supervision and regulation department is responsible for the supervision and management of the insurance industry. According to the law, this power should be exercised by the People's Bank of China. However, in order to strengthen the management of the insurance industry, the China Insurance Regulatory Commission was established, which is responsible for supervision and management, but it is not a state organ. Although the subject authorized by law to exercise state administrative functions and powers has changed from the past state organs to the present non-state organs and organizations, its functions and powers are still part of the state administrative functions and powers. Its personnel engaged in public affairs, in the exercise of state administrative functions and powers, have dereliction of duty, which constitutes a crime, and so on, such as China National Intellectual Property Administration, China Securities Regulatory Commission, Meteorological Bureau, Seismological Bureau, electric power company, aviation industry company, post and telecommunications company and other non-state organs and units, all exercise certain state administrative functions and powers under the authorization of laws and regulations, and their personnel engaged in public affairs can constitute the subject of dereliction of duty.
3. Persons engaged in public service in organizations entrusted by state organs to exercise their functions and powers on their behalf. Article 18 of the Administrative Punishment Law stipulates that an administrative organ may, in accordance with the provisions of laws, regulations or rules, entrust an organization that meets the statutory conditions to impose administrative punishment within its statutory authority, and impose punishment in the name of the entrusted administrative organ within the scope of entrustment. In practice, some state administrative organs have authorized the administrative punishment power of departments. For example, the local health administrative department entrusts the health and epidemic prevention station to supervise and manage the food hygiene operation, the cultural department entrusts the cultural market management office of public institutions to be responsible for the supervision and management of culture and entertainment, the transportation department entrusts the transportation management station of public institutions to be responsible for the management of traffic and traffic operation, and the competent forestry department entrusts companies such as forest farms to be responsible for the supervision and management of forestry operation. These departments are not state organs. However, according to the explanation, the civil servants who are entrusted by the state organs to exercise the powers of the state organs have dereliction of duty when exercising their powers on behalf of the state, which constitutes a crime and constitutes the subject of the crime of dereliction of duty.
4, although not included in the staffing of state organs, but engaged in official duties in state organs. Mainly refers to the personnel who do not belong to the official staff of state organs, but exercise the functions and powers of state organs in state organs. Its "identity" does not belong to the official cadre establishment of the state, but it actually exercises the same authority as the staff of state organs. Mainly such as contract police officers employed by public security organs and prison management departments, seconded personnel, and workers not included in the official establishment of state organs. Although these people do not belong to the staff of state organs in terms of "identity", from their official activities, it is in line with the essential characteristics of the staff of state organs to represent the exercise of state functions and powers. According to the explanation, this kind of personnel belongs to those who are not included in the establishment of state organs, but are engaged in official duties in state organs. When exercising state power on behalf of the state, there is dereliction of duty, which constitutes a crime and becomes the subject of dereliction of duty. However, only by engaging in official activities can the subject of the crime of dereliction of duty be established. Otherwise, if you do not engage in official duties, you will not be treated as a staff member of a state organ. Even if there is a criminal act, criminal responsibility cannot be investigated for dereliction of duty.
5. Other personnel. Mainly refers to the crime of dereliction of duty in Chapter IX of the Criminal Law, which can be composed of non-state functionaries specified in individual charges. For example, the crime of revealing state secrets. Paragraph 2 of Article 398 of the Criminal Law stipulates that non-state functionaries who commit the crimes mentioned in the preceding paragraph shall be punished as appropriate in accordance with the provisions of the preceding paragraph. It can be seen that the non-special subject, that is, the staff of non-state organs can also set up the subject of dereliction of duty.