I. Concept
The crime of perverting the law (abolishing the crime of perverting the law, paragraph 2 of Article 399 of the Criminal Law) refers to the serious behavior of judicial staff who deliberately violate the facts and laws in civil and administrative trial activities.
Second, the composition of the crime
(A) the object elements
The object of this crime is the normal activities of the state judicial organs.
(b) objective factors
Objectively, this crime is manifested as a serious violation of facts and laws in civil and administrative trial activities. There are many specific ways to bend the law in violation of facts and laws, some are deliberately forging and collecting evidence materials; Some seduce, bribe or even coerce others to provide perjury; Some tamper with or destroy evidence materials; Some deliberately distort the understanding of the law and even ignore the legal provisions; Some violate the litigation procedure and suppress or even deprive the parties of their litigation rights; Wait a minute. Judges perverting the law must take place in civil and administrative trial activities. This is a broad concept. Any trial conducted in accordance with the Civil Procedure Law is a civil trial. The act of perverting the law must be serious in order to constitute this crime. Although there are acts of bending the law, the circumstances are not serious, but they are just violations of law and discipline and should be dealt with by administrative discipline.
According to the Supreme People's Procuratorate1September 6, 999, the Standard Provisions on the Filing of Investigation Cases Directly Accepted by People's Procuratorates (for Trial Implementation), anyone suspected of any of the following circumstances shall be placed on file:
(1) perverting the law, causing heavy property losses to citizens, legal persons or other organizations;
(two) perverting the law, causing the parties and their relatives to commit suicide, disability or mental disorder;
(3) Forging relevant materials and evidence, creating a false case and perverting the law;
(4) colluding with the parties to create perjury, destroy evidence or tamper with court transcripts, thereby perverting the law;
(five) other serious circumstances.
(3) Main elements
The subject of this crime is a special subject, that is, it is limited to judicial staff. In fact, it is mainly judges engaged in civil and administrative trials, because only they can bend the law by taking advantage of their powers, including presidents, vice presidents, members of judicial committees, presidents, vice presidents, judges and assistant judges of people's courts at all levels.
(4) Subjective factors
Subjectively, this crime must be intentional, that is, knowing that one's actions violate facts and laws is a perverted judgment, but he still insists on doing it. Negligence cannot constitute this crime. If dereliction of duty causes great losses to the interests of the state and people and public property, which constitutes a crime, it shall be convicted of dereliction of duty.
Third, identify
(A) the boundaries between this crime and the crime of bending the law for selfish ends
This crime occurred in civil and administrative trial activities, while the latter occurred in criminal trial activities.
(2) If the perpetrator commits this crime for or for the purpose of perverting the law and judging, and instigates bribing witnesses to provide perjury, he will also commit other crimes, such as the crime of violent evidence collection and the crime of obstructing testimony. At this time, it belongs to the implicated offender, and should be given a heavier punishment according to the felony constituted, and no combined punishment for several crimes should be implemented.
Fourth, punishment.
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years. The circumstances here are particularly serious. Generally speaking, the criminal motive and means are very bad, and the legal rights and interests of the state, enterprises and citizens are greatly damaged.
In accordance with the provisions of the third paragraph of this article, judicial personnel who bend the law by accepting bribes and commit the crime of bending the law and making judgments, and at the same time constitute the crime of accepting bribes, shall be convicted and punished in accordance with the provisions of heavier punishment.
V. Legal and judicial interpretation
[Criminal Law Provisions]
Article 399 Whoever intentionally violates facts and laws in civil and administrative trial activities and makes a judgment that perverts the law, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
In the execution of a judgment or ruling, those who are seriously irresponsible or abuse their powers, fail to take litigation preservation measures according to law, fail to perform their statutory execution duties, or illegally take litigation preservation measures or enforcement measures, thus causing heavy losses to the interests of the parties or others, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; Whoever causes particularly heavy losses to the interests of the parties concerned or others shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
If a judicial officer commits the acts mentioned in the preceding three paragraphs for accepting bribes, and at the same time constitutes a crime as stipulated in Article 385 of the Cost Law, he shall be convicted and punished in accordance with the provisions of heavier punishment.
[Judicial interpretation]
Provisions of the Supreme People's Procuratorate on the Standard of Directly Accepting Investigation Cases by People's Procuratorates (for Trial Implementation) (1999.9.9 Gao Jian Fa Shi Zi [1999] No.2)
Second, the crime of working and studying.
(6) perverting the law in civil and administrative cases (article 399th)
The crime of perverting the law in civil and administrative trials refers to the serious behavior of judges who deliberately violate the facts and laws and pervert the law in civil and administrative trials.
Suspected of one of the following circumstances, it shall be placed on file:
Perverting the law, resulting in heavy losses to the property of citizens, legal persons or other organizations;
2. perverting the law, causing the parties and their relatives to commit suicide, disability or mental disorder;
3. Forging relevant materials and evidence, making false cases and bending the law;
Collusion with the parties to create perjury, destroy evidence or tamper with court transcripts or pervert the law;
5. Other serious circumstances.
The Supreme People's Procuratorate's interpretation of the applicable law in handling cases of detention for favoritism and malpractice (see the explanation of "abuse of power") b