The author believes that the nature of the behavior of judicial staff to indulge criminals in order to seek the interests of their own unit should be regarded as an abuse of power. It cannot simply be presumed that the behavior does not have the motive of malpractice for personal gain and does not constitute the crime of malpractice for personal gain, or that the consequences of the behavior do not meet the conditions of "significant loss" and do not constitute the crime of abuse of power. When determining whether a crime is constituted, the relationship between the crime of abuse of power and other special crimes of abuse of power should be clarified, as well as the substantive nature of the "prosecution standards" stipulated in the "Case Filing Standards". Whether it constitutes the crime of abuse of power shall be determined by reference to the filing standards for special crimes of abuse of power of similar conduct.
1. Whether the crime of abuse of power and the crime of special abuse of power belong to an independent competing relationship
"The independent competing relationship is a category of competing relationships in criminal law, which refers to the crime of abuse of power and the crime of special abuse of power." A crime relationship formed between another crime included in the extension, that is, a crime with a smaller extension, is a special type of crime that includes a crime with a larger extension. The concept is: a crime with a smaller extension. "The crime of abuse of power stipulated in Article 397 of the Criminal Law is an independent and competing relationship with other crimes of abuse of power and belongs to the same category." relation. Such as the crime of abuse of power, the crime of bending the law for personal gain, the crime of failure to transfer criminal cases for personal gain, the crime of illegal examination and approval, the crime of land occupation, etc. The abuse of power is an objective manifestation of the crime. The crime of abuse of power is a crime category, and other crimes are types. Other crimes are included in the crime of abuse of power and are part of the set of crimes of abuse of power. Therefore, special abuse of power must constitute the crime of abuse of power, just because the criminal law has established special provisions for the purpose of special protection of special objects, requiring that special abuse of power be convicted and punished in accordance with special provisions. From the above analysis, it can be concluded that the constituent elements of other abuse-of-power-type dereliction of duty crimes, that is, regardless of the subject, subjective performance or objective performance, crime object and crime results, should meet the conviction requirements for the crime of abuse of power.
2. It must meet the prosecution standards for special abuse of power crimes. Abuse of power should also meet the prosecution standards
The case filing standards listed in the "Case Filing Standards" of the Supreme People's Procuratorate refer to the objective aspects of the behavior and the criminal consequences. As long as the objective behavior and consequences reach a certain The standard means that relevant crimes can be filed to pursue criminal responsibility. For example, the filing criteria for "Commodity Inspection Favoritism Cases": "Forging or altering commodity inspection documents, seals, logos, seals, quality certification marks and other means to make false certifications or issue untrue certification conclusions", and The criteria for filing a case of "illegal transfer of state-owned land use rights at a low price": "the amount of loss to state-owned land assets is more than 300,000 yuan."
According to the author’s previous analysis of the overlapping denotations of special abuse of power provisions and abuse of power crime provisions, “Since the denotations of the two legal provisions overlap, it means that a certain behavior can be covered by both legal provisions at the same time. "Evaluation", then its objective performance, object and criminal result and other elements meet the crime of special abuse of power. When the objective performance elements, criminal object and criminal result elements meet the criminal constituent elements of the special crime of abuse of power, they should also meet the criminal constituent elements of the crime of abuse of power. It can be inferred from this that the filing standards for the crime of special abuse of power in the "Standards for Filing Cases" must meet the prosecution standards for the crime of abuse of power. Otherwise, it violates the above-mentioned criminal law principles. In other words, as long as the "Case Filing Standards" objectively meet the prosecution standards for the crime of special abuse of power, it should meet the objective prosecution conditions for the crime of abuse of power.
3. The filing standards for objectively similar crimes should be referred to to determine whether the prosecution standards for the crime of abuse of power are met
(1) When selecting the filing standards for objectively similar crimes, one must first comply with the lenient , Principle of aggravated crime
The principle of aggravation and aggravation is one of the basic principles of criminal law. Its basic meaning is: if the behavior is relatively minor, it constitutes a crime. Its basic meaning is: if a lighter act constitutes a crime, then a more serious act should constitute a crime. Although the principle of leniency in the principle of guilt may go beyond the principles of criminal law, it is still a useful method for us to judge the nature of behavior. If we only compare objectively, the behavior of judicial staff to indulge criminal suspects by substituting punishment for punishment is most similar to the crime of bending the law for personal gain and not transferring criminal cases for personal gain. However, judging from the "threshold" for conviction stipulated in the "case filing standards" of the Supreme People's Procuratorate, the "threshold" for conviction of the crime of bending the law for personal gain is relatively low. As long as there is intentional behavior to shield criminals from being held criminally responsible, this standard is sufficient. Comparisons may easily lead to an overly broad attack surface, which is not conducive to the reasonable protection of the rights and interests of the parties concerned. It is too lenient and is not conducive to the reasonable protection of the rights and interests of the parties. The filing standards for the crime of malpractice for personal gains and failure to transfer criminal cases include the standard of "not transferring criminal cases that may be sentenced to more than three years in prison according to the law, not transferring criminal cases involving more than three people, and the circumstances are serious in order to make profits for the unit", which is obviously more serious than bending the law for personal gains. The standards for filing a crime are "harsh". Comparing the standards of this crime, it does not increase the liability of the parties and is consistent with the principle of presumption in favor of the defendant. Because, in the process of investigating crimes. Whether in terms of statutory duties or public recognition and inner expectations, judicial staff should have stricter requirements and responsibilities than administrative law enforcement officers. Administrative law enforcement officers do not constitute a crime and the prosecution of cases by judicial organs does constitute a crime. As judicial staff responsible for criminal investigation and handling, such similar behavior should be criticized by the criminal law. If the behavior of a judicial staff member is not enough to constitute a crime, but the behavior of an administrative law enforcement officer does constitute a crime, it cannot be established emotionally or rationally, let alone be accepted by the public.
(2) Use the most similar behavioral regulations for comparison
From the previous analysis, the crime of favoritism and the crime of abuse of power are independent competing relationships and the two are in the "Case Filing Standards" Therefore, as long as we consider that the behavior of the crime of favoritism and malpractice discussed in this article objectively does not meet the filing standards for the crime of transfer for prosecution, it will inevitably meet the prosecution standards for the crime of abuse of power. The behavior discussed in this article must meet the prosecution standards for the crime of abuse of power. Among the filing standards for the crime of engaging in malpractice for personal gain and not transferring a criminal case, there is the filing standard of "the unit supervisor and other directly responsible personnel seek personal gain for the unit and do not transfer the criminal case, and the circumstances are serious." This stipulates that this situation is related to judicial staff. The behavior of indulging criminal suspects in the interests of the unit and substituting punishment for punishment is the most comparable objectively. This situation is most comparable in terms of objective behavior. Therefore, if a judicial officer engages in this kind of behavior, if the circumstances of the case meet the conditions for the crime of not transferring a criminal case for personal gain and abuse of power, the case can be opened and prosecuted for the crime of not transferring a criminal case for personal gain.
Fourth, the behaviors discussed in this article are non-material results. It cannot be measured by the standard of material loss
The inference process that maintains that the behavior discussed in this article does not constitute a crime is: due to the lack of motive of malpractice for personal gain, the behavior should be evaluated as the crime of abuse of power. Although the criminal suspect was indulged, it did not cause major losses to public institutions, property, national and people's interests, and it did not constitute the crime of abuse of power.
This view is to limit the consequences of the crime of abuse of power to material results, that is, to measure whether it meets the statutory requirements for major losses based on the amount of material losses and the degree and quantity of material damage, while ignoring non-material losses. Article 397 of the Criminal Law states that "state agency staff abuse their powers or neglect their duties, causing heavy losses to public property and the interests of the country and the people." The interests of the country and the people should be interpreted broadly, because The object of the crime of abuse of power is the normal activities of state agencies, and its consequences "are an infringement on the legal, fair and effective performance of official duties by state agencies and the public's trust in state agencies. However, this result is not tangible and needs to be objective and comprehensive." Judgment and evaluation. On the other hand, in order to limit the scope of punishment, most criminal law provisions take tangible infringement results as a constitutive element." Even the "Case Filing Standards" of the Supreme People's Procuratorate also stipulates that cases suspected of one of the following circumstances should be filed, and this does not exclude other situations that harm the interests of the country and the people. It can be seen that measuring whether the prosecution standard for the crime of abuse of power is met solely based on whether material losses are caused does not meet the requirements for judging the formal rationality of the crime of abuse of power.