The author believes that the nature of the behavior of judicial staff who indulge criminals with punishment instead of punishment for the benefit of the unit should be regarded as abuse of power. However, simply because there is no motive for favoritism, it cannot be inferred that this behavior does not constitute the crime of bending the law for favoritism, or that the consequences of the behavior do not meet the conditions for filing a case of "great loss" and do not constitute the crime of abuse of power. When determining whether it constitutes a crime, we should clarify the relationship between the crime of abuse of power and other special crimes of abuse of power and the essential nature of the "prosecution standard" stipulated in the "Standards for Filing Cases". We should refer to the filing standard of special abuse of power crime with similar behavior to determine whether it constitutes abuse of power crime.
First, the crime of abuse of power and the special crime of abuse of power are independent and competitive.
"Independent concurrence is a kind of concurrence relationship in criminal law, which refers to the situation that the extension of one charge is contained by the extension of another charge, and a kind of affiliation is formed between the two charges. The crime of inclusion, that is, the crime with a small extension, is a special crime with a large extension. Conceptually speaking, an act that violates a crime with a small extension must also violate a crime with a large extension. "
The crime of abuse of power stipulated in Article 397 of the Criminal Law and other crimes of abuse of power are independent and competitive with each other, belonging to the relationship between species. Such as the crime of abuse of power and bending the law for personal gain, the crime of not transferring criminal cases for personal gain, the crime of illegal approval, the crime of occupying land, etc. The crime of abuse of power is one charge, others are all charges, and other charges are included in the crime of abuse of power, which is a part of the collection of crimes of abuse of power. Therefore, the special crime of abuse of power must constitute the crime of abuse of power, just because the criminal law has set up specific provisions for the purpose of giving special protection to special objects, requiring conviction and punishment of the special crime of abuse of power stipulated in the specific provisions. From the above analysis, it can be concluded that the constitutive requirements of other dereliction of duty crimes of abuse of power, that is, whether it is subject, subjective or objective performance, object and criminal result, should meet the conviction requirements of abuse of power.
Second, realize the prosecution standard of special abuse of power crime. It should also meet the prosecution standards for the crime of abuse of power.
The cases listed in the Supreme People's Procuratorate's standards for filing a case refer to the objective aspects of behavior, as well as the objective behaviors and consequences of various crimes. As long as the objective behavior and consequences reach a certain standard, criminal responsibility can be investigated for related crimes. For example, the standard of filing a case for malpractice in commodity inspection is "forging or altering documents, seals, marks, seals and quality certification marks". Or issue an untrue proof conclusion ",and the standard for illegally transferring the right to use state-owned land at a low price is" causing a loss of state-owned land assets of more than 300,000 yuan ".
According to the author's previous analysis, the extension of the special abuse of power law overlaps with the extension of the crime of abuse of power. "Since the extension of the two laws overlap, it shows that a certain behavior can be evaluated by both laws at the same time", then its objective performance, object and criminal result should also meet the conviction requirements of special abuse of power crime. It can be inferred that the filing standard of special abuse of power crime must meet the prosecution standard of abuse of power crime. Otherwise, it will violate the above criminal law principles. In other words, as long as it meets the objective prosecution standard of special abuse of power crime in the filing standard, it should meet the objective prosecution conditions of abuse of power crime.
Third, we should refer to the objective filing standards of similar crimes to determine whether it meets the prosecution standards of abuse of power.
(a) in the choice of objective filing criteria for similar crimes, first of all, it conforms to the principle of easy conviction and clear conviction.
The principle of emphasizing light is one of the basic principles of criminal law, and its basic meaning is: if a lighter act constitutes a crime. Then a heavier act should constitute a crime. Although it is suspected that the principle of legally prescribed punishment for a crime exceeds the principle of legally prescribed punishment for a crime, it is still a useful method for us to judge the nature of behavior. If it is only an objective comparison, it is most similar to the crime of bending the law for selfish ends and the crime of not handing over criminal cases in bending the law that judicial staff connive at criminal suspects' profit by substituting punishment for punishment. However, judging from the "threshold" of the crime of bending the law for selfish ends stipulated in the Supreme People's Procuratorate's "Standards for Filing Cases", the "threshold" of the crime of bending the law for selfish ends is low, so long as there is a situation of deliberately shielding criminals from being investigated for criminal responsibility, it is enough. Compared with this standard, it is easy to cause a wide range of attacks and is not conducive to the reasonable protection of the rights and interests of the parties. However, the criteria for filing the crime of not transferring criminal cases in bending the law include that "not transferring criminal cases may result in more than three years' imprisonment, involving more than three people, and the circumstances of making profits for the unit are serious", which is obviously more harsh than the criteria for filing the crime of bending the law for selfish ends. Compared with this crime standard, it does not increase the responsibility of the parties, which is in line with the presumption principle in favor of the defendant. Because when investigating crimes, Judicial personnel should have stricter requirements and responsibilities than administrative law enforcement personnel in terms of legal responsibilities, public recognition and inner expectations. It is a crime for administrative law enforcement personnel not to transfer a case that constitutes a crime to judicial organs for prosecution. Therefore, as a judicial officer responsible for investigating and dealing with crimes, he should be condemned by the criminal law. If being a judicial officer is not enough to constitute a crime, but as an administrative law enforcement officer, it constitutes a crime, which is unreasonable in emotion and reason, and even less acceptable to the public.
(2) Take the most similar terms of conduct for comparison.
The crime of not transferring criminal cases for favoritism and malpractice and the crime of abuse of power analyzed above are an independent competitive relationship and mutual relationship in the filing standard, so as long as the behavior discussed in this paper reaches the objective filing standard of the crime of not transferring criminal cases for favoritism and malpractice, it will inevitably meet the prosecution standard of abuse of power. In the standard of filing a case, the crime of not transferring a criminal case for favoritism includes the standard that "the person in charge of the unit and other directly responsible personnel do not transfer a criminal case for the self-interest of the unit, and the circumstances are serious". This situation in the "Regulations" can best compare with the behavior of judicial staff conniving at criminal suspects with punishment instead of punishment for the benefit of the unit. Therefore, if there is such an act against judicial personnel, and the circumstances involved are in line with the conditions for filing a criminal case in bending the law, it should be filed for prosecution for the crime of abuse of power.
Fourthly, the behavior discussed in this paper belongs to immaterial results. It can't be measured by the standard of material loss.
The deduction process that the behavior discussed in this paper does not constitute a crime is that because there is no motive for favoritism, the behavior should belong to the crime of abuse of power and should be evaluated. Although the criminal suspect's indulgence has not caused great losses to public property, the interests of the state and the people, it does not constitute the crime of abuse of power. This view is to limit the criminal consequences of abuse of power to material results, that is, to measure whether it meets the legal requirements of heavy losses by the amount of material losses and the degree and quantity of personal injuries, while ignoring intangible losses. Article 397 of the Criminal Law stipulates that "the staff of state organs abuse their powers or neglect their duties, resulting in heavy losses to public property and the interests of the state and the people", and the interests of the state and the people should be broadly understood. The object of the crime of abuse of power is the normal activities of state organs, and its consequences are "the legal, fair and effective execution of state organs' official duties and citizens' trust in them, but this result is not tangible and needs to be implemented." On the other hand, in order to limit the scope of punishment, most criminal law provisions will take tangible infringement results as a constituent element. " Even the Supreme People's Procuratorate's "Filing Standards" stipulates that an act suspected of one of the following circumstances shall be filed, and other situations that harm the interests of the state and the people shall not be excluded. It can be seen that whether it meets the prosecution standard of abuse of power only by whether it causes material losses does not meet the requirements of judging the rationality of abuse of power.