This paper mainly analyzes and discusses the objective elements of the crime of dereliction of duty from three aspects: negligence, heavy losses, the causal relationship between negligence and harmful results.
First, dereliction of duty
1, behavior form
There are different opinions about the basic forms of dereliction of duty in the theoretical circle, and the focus of the debate is whether negligence includes action. One view is that the behavior of "not performing or not performing duties correctly" is inaction, and it does not include the form of speaking lightly. The reason is that the subject of dereliction of duty is irresponsible and negative. Another point of view is that the behavior of "failing to perform or improperly performing duties" can be inaction or action. The reason is that in the crime of dereliction of duty, some actors have certain obligations that must be fulfilled according to the criminal law, and it is inaction that the actors can perform but not perform; There are also some behaviors that wrongly implement positive behaviors, especially as actions. Should dereliction of duty be included as a form? After a little analysis of the above two viewpoints, we can easily draw a conclusion. The above-mentioned first viewpoint is obviously inappropriate in its argument that the subject of dereliction of duty is irresponsible and negative. First of all, the positive and negative behavior is not the main criterion to distinguish between action and inaction. Although in most cases, inaction is manifested as negative behavior or physical inactivity, some crimes of inaction also include some positive physical behaviors. Therefore, physical action does not mean action, and at the same time, inaction does not mean that the body is still. Secondly, not all dereliction of duty is negative. Dereliction of duty refers to the behavior of "failing to perform duties seriously", in which the behavior of "failing to perform duties" is of course a negative behavior and belongs to inaction, which is undoubtedly meaningful; It is hard to say that the behavior of "not performing duties seriously" is a negative behavior, because although the actor is not serious, he does perform his duties, which is obviously a positive behavior. Third, although the behavior of "not performing duties seriously" does not meet the requirements of duties, it is not a failure to perform duties after all. It should be said that this form of dereliction of duty belongs to behavior. It can be seen that the first view is hard to hold water, while the second view has laws to follow.
To sum up, dereliction of duty can be as well as inaction. Among them, as a form of the crime of dereliction of duty, the actor carried out an act that deviated from his position or responsibility with positive actions, causing great losses to the interests of the country and the people and public and private property; Negligence in the form of omission refers to an act in which the actor fails to perform his duties and obligations stipulated by law, causing great losses to the interests of the state, the people and public and private property. To put it simply, he didn't do what he should do according to his duty. Generally speaking, dereliction of duty is manifested in the form of action, and dereliction of duty of failing to perform and withdrawing from duties is manifested in the form of inaction.
2. Specific identification of non-performance of duties and incorrect performance of duties
The author believes that the key to the identification of non-performance of duties and incorrect performance of duties lies in the identification of the duties of national staff. In this regard, we should focus on the following two issues:
(1) The duties of national staff are diverse.
What needs to be clear is that the responsibilities here, on the one hand, show that the staff of state organs enjoy certain powers, on the other hand, reflect that the staff of state organs have certain obligations. Of course, this obligation is only related to his work or position in state organs, and does not include general moral obligations or obligations that party member should abide by.
The specific duties of the staff of state organs involve many aspects, and their dereliction of duty may vary widely in various fields and industries, and relevant laws, regulations or rules and regulations generally have corresponding provisions. For example, the Judges Law stipulates the duties of judges, the Procurator Law stipulates the duties of prosecutors, and the People's Police Law stipulates the powers, obligations and disciplines of the people's police, and so on. Therefore, the responsibilities of the staff of different state organs are different, and the determination of the responsibilities of the staff of state organs must be based on relevant regulations and cannot be taken for granted.
It should be pointed out that, on the one hand, the positions of state organs in the same system, especially state staff in the same department, generally have certain * * *. For example, as long as it is the people's police, it has the obligation to fight crime whenever and wherever; On the other hand, due to the specific division of labor, their responsibilities are not the same. For example, civil trial judges and criminal trial judges, prosecutors of anti-corruption departments and prosecutors of procuratorial departments, patrolmen and criminal police. Their specific jobs are different and their responsibilities are different. Therefore, when determining the position of national staff, we should pay attention to both * * * and differences.
(2) The position of national staff is conditional.
The duties of the staff of state organs are not completely unchanged, but may change with the change of objective conditions, and some laws, regulations or rules even make clear provisions on this. For example, the Code for Police Squadron of Highway Patrol Police issued by the Ministry of Public Security stipulates that when highway patrol officers correct violations, they should instruct drivers to pull over or park at places that do not affect traffic. However, in case of rain, snow, fog or icy roads, drivers are generally not followed or ordered to stop, but they can be reminded to correct by shouting. Another example is the "Provisions on Several Issues Concerning the Trial of Economic Disputes Cases Suspected of Economic Crimes" issued by the Supreme People's Court: "If a people's court accepts a case as an economic dispute and thinks that it is not an economic dispute case but is suspected of economic crimes after trial, it shall rule to dismiss the prosecution and transfer the relevant materials to the public security organ or the procuratorial organ." The "post-trial" here obviously means that according to the evidence system of civil litigation, the case can only be transferred to the criminal investigation if relevant evidence is found from the evidence of both parties and cross-examination to prove that the case is suspected of economic crime, rather than the procuratorial organ's understanding that as long as one party raises a case suspected of economic crime, it must be transferred to the criminal investigation organ. Otherwise, either party can't provide evidence in civil litigation, and it is possible to end the civil litigation on the defense of the other party's alleged crime, so there is no need for the civil litigation system to exist. Therefore, judging whether the staff of state organs have certain positions in specific cases must be analyzed in combination with specific circumstances.
Second, heavy losses.
The crime of dereliction of duty is an act that the staff of state organs are seriously irresponsible, fail to perform or perform their duties incorrectly, resulting in heavy losses to public property, the interests of the state and the people. In judicial practice, it is controversial to identify the serious loss of public property caused by dereliction of duty, which is difficult to grasp, which is not conducive to accurately cracking down on such crimes. The author tries to talk about his own views on how to identify "significant loss of public property".
1, causing great losses to public property, national and people's interests.
"Causing great losses to public property, national and people's interests" is an important objective feature of the crime of dereliction of duty and an important basis for conviction and sentencing. The so-called public property, according to the provisions of article 9 1 of China's criminal law, refers to the following property: state-owned property; Property collectively owned by the working people; Property used for social donations or special funds for public welfare undertakings such as poverty alleviation; Property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations. The so-called heavy loss of public property refers to the following three situations according to the Provisions of the Supreme People's Procuratorate on the Standards for People's Procuratorates to Directly Accept Cases for Investigation on File on July 26th, 2006: First, the direct economic loss of personal property is more than 6,543,800 yuan, or the direct economic loss is less than 6,543,800 yuan, but the indirect economic loss is more than 750,000 yuan; Second, it causes direct economic losses of more than 300,000 yuan to public property or the property of legal persons and other organizations, or the direct economic losses are less than 300,000 yuan, but the indirect economic losses are more than 6.5438+0.5 million yuan; Third, although it does not meet the first two standards, the first two direct economic losses total more than 300,000 yuan, or the direct economic losses total less than 300,000 yuan, but the indirect economic losses total more than 6.5438+0.5 million yuan. It can be seen that the heavy losses of public property, national and people's interests include direct economic losses and indirect economic losses.
2, the identification of direct economic losses
As for the direct economic loss, some people think that this is a simple and clear problem, and there is no need to study it more, but in practice, how to identify the loss is often very complicated and controversial. Some people think that as long as the owner of public property loses control of public property, it can be considered as a loss; Some people think that the loss of public property can be recognized as a loss when its own efforts are irreparable; Some people think that in the case that the loss cannot be recovered by the owner of public property, effective measures need to be taken with the help of external forces to be recognized as the loss of public property. The author believes that the direct loss of public property can be identified from the following aspects:
(1) Due to force majeure, the public property suffered irreparable heavy losses. Force majeure refers to the unforeseeable, unavoidable and insurmountable objective situation. The deputy director of a finance bureau did not perform his duties correctly and instructed the accountant to lend the bureau's 2 million yuan extra-budgetary funds to a chemical plant for production in violation of regulations. Soon, the chemical plant exploded and burned due to lightning strike, and the factory building was instantly reduced to ashes, resulting in a direct economic loss of 5 million yuan. Closed down, and the 2 million lent by the Finance Bureau also went up in smoke. Obviously, the deputy director must bear the responsibility of dereliction of duty for the direct economic loss of 2 million yuan.
(2) Due to serious irresponsibility in work, public property was defrauded by criminals, resulting in irreparable economic losses. For example, A, the chief of the administrative department of an agency, holds a transfer check of 6,543,800 yuan, and discusses with B, the manager of a company, about purchasing central air conditioning for his unit. Under the careful arrangement of B, "A" didn't carefully examine B's credit status, identity and contract terms, but hung out with B's public relations lady C all day, which led C to successfully steal the check of 6.5438 million yuan kept by A to B, and B quickly took out all the cash from the bank. A's dereliction of duty caused property losses of 6,543,800 yuan, which should be recognized as direct economic losses.
(3) Transfer of public property in legal form, causing irreparable heavy losses. This is a common situation that debtors evade the law and debt in the current economic field. For example, during his tenure as the director of the Town Rural Cooperative Foundation, A, a cadre of a town, repeatedly lent more than 800,000 yuan to B in violation of regulations. In name, B used the money for his own private enterprise, but in fact it was proposed in cash and paid to his son-in-law C to set up another enterprise. The Agricultural Finance Association failed to collect the loan from Party B, so it sued Party B, and Party B refused to repay the loan on the grounds of losses of its own enterprise. The court also suffered from the fact that there was no evidence to prove that Party B transferred the loan to Party C and could not enforce it against Party C, resulting in the inability to recover 800,000 yuan of property. Similarly, in practice, after he transferred his assets to his wife's name, he immediately engaged in a "fake divorce" and agreed to give all his property to his wife. These legal transfers of public property have caused irreparable situations, which should be recognized as direct economic losses caused by the negligence of the actor.
(4) Loss of public property or other heavy losses due to dereliction of duty. The loss of public property, the actual value of the property at the time of loss is the direct economic loss, which is relatively simple; For the destruction of public property, it is necessary to evaluate the property through specialized agencies. By comparing the value of public property before being destroyed with the actual value after being destroyed, we can get its actual loss and determine its direct economic loss.
(5) Due to neglect of management or failure to perform management duties, this unit has been illegally infringed by lawless elements and suffered heavy losses. Some leading cadres do not pay attention to the daily work of their own units, ignore some violations of discipline and rules, have no specific measures to implement rules and regulations, and have been used by lawless elements, causing huge irreparable losses to their own units, which should be regarded as direct economic losses caused by dereliction of duty. For example, the director of a local tax bureau has always neglected the management of the bureau's work, and even failed to hold the accountant responsible for misappropriating thousands of dollars. During the period from1July, 1997 to1May, 1998, Chief Financial Officer A of the Bureau lent the public funds of 1.5 million yuan in his account to self-employed B for gambling activities without authorization, and Party B absconded after losing all the funds of 1.5 million yuan. After years of arrest by judicial organs, there is still no result. There is no doubt that A's behavior constitutes the crime of misappropriating public funds, but the director of the local taxation bureau also constitutes the crime of dereliction of duty, and he must bear legal responsibility for the direct economic losses caused by the company's property of 6.5438+0.5 million yuan.
(6) Significant losses that cannot be recovered through court proceedings. In the case that public property is out of control due to dereliction of duty, it is a compulsory and most practical way to recover economic losses by bringing a lawsuit to the people's court. If the economic losses cannot be recovered in this way, it should be said that there is no other way. Therefore, losses that cannot be recovered through legal proceedings can be identified as direct economic losses. The litigation procedure includes the parties bringing a lawsuit to the court, the court hearing and execution. In practice, the author thinks that the execution can be suspended once in the execution process or the executed person fails to recover the execution target once in judicial detention, which can be regarded as causing direct economic losses.
3. Determination of indirect economic losses
Indirect economic losses come from direct economic losses. Generally speaking, when direct economic losses are generated, indirect economic losses are often generated. How to determine whether direct economic loss and indirect economic loss can be used as the basis for conviction of dereliction of duty? There are uncertainties in practice, and some even refuse to identify them, which affects the fair handling of such crimes. The author believes that indirect economic losses can be confirmed from the following aspects:
(1) Bank interest calculated according to direct economic loss. The loss of funds caused by the actor's dereliction of duty, let's not talk about how much profit this part of the lost funds can generate in the course of operation (because the calculation of profits is uncertain), but the bank interest from the date when the funds are out of control to the irretrievable period is objective, calculable and real, and should be recognized as indirect economic losses.
(2) Due to dereliction of duty, the public property failed to be used for the agreed investment, causing heavy losses. If the actor fails to perform his duties correctly and put public property into the established project as promised, he must bear the liability for breach of contract such as paying liquidated damages and compensating losses in accordance with the provisions of China's civil law. If the director of a civil affairs bureau illegally borrowed 2 million yuan from an enterprise to pay for the equipment contracted by a customer, and failed to recover the money from the enterprise to the customer within the contract payment period (one month) (the enterprise returned it to the bureau one year later), which led to the customer suing the bureau for breach of contract, and the court ordered the civil affairs bureau to pay 200,000 yuan as liquidated damages to the customer and compensate for the loss of 300,000 yuan, then the director of the civil affairs bureau must bear the responsibility for the indirect economic loss of 500,000 yuan due to negligence.
(3) after the loss or destruction of public and private property due to dereliction of duty, the funds needed for repair, reproduction and replacement. National staff are serious and responsible for their work, fulfill their duties, strictly manage and abide by rules and regulations, so that accidents will not occur, resulting in heavy losses such as loss and destruction of public property and personal property; It is precisely because the actor is seriously irresponsible for his work, fails to perform or fails to perform his duties correctly, which leads to the loss or destruction of public property and personal property such as machinery and high-tech equipment in normal operation. To restore normal operation, it must be repaired or replaced, which costs money. This part of the money is an extra burden, so it should be considered as an indirect economic loss caused by negligence.
(four) due to dereliction of duty, resulting in heavy losses to public and private property, and expenses incurred to recover the losses. After public property and personal property are out of control due to dereliction of duty, people's mentality always expects to recover economic losses as much as possible through various channels and methods. In this process, a lot of expenses are often spent, such as travel expenses, accommodation expenses and subsidies paid by people sent by their own units during the debt collection process. Legal fees, lawyer's agency fees, travel expenses, accommodation fees, asset appraisal fees, appraisal fees, etc. Fees collected in the course of litigation shall be regarded as indirect economic losses.
(5) the cost of reinforcement due to the identification of potential safety hazards in the house. Although the house has potential safety hazards, but it has not been identified as a dangerous building, the house still has use value, and the required reinforcement costs have not actually occurred, which should be regarded as indirect economic losses caused by negligence.
4. Problems that should be paid attention to in correctly identifying "significant loss of public property"
Correctly identifying "significant loss of public property" is of great significance for severely investigating and accurately cracking down on dereliction of duty, maintaining the image and reputation of state organs, ensuring the implementation of national laws and regulations, and realizing the general plan of governing the country according to law. In the specific operation, we must pay attention to the following points:
(1) There must be a causal relationship in criminal law between the crime of dereliction of duty and the objective harmful consequences of heavy losses to public property. If there is no causal relationship between them in criminal law, even if there are harmful consequences of dereliction of duty and heavy losses of public property objectively, the criminal responsibility of the perpetrator cannot be investigated for negligent crime.
(2) Strictly distinguish between direct economic losses and indirect economic losses caused by heavy losses of public property. Direct economic loss is "primary loss", and indirect economic loss is derived from direct economic loss and is "derivative loss". The relationship between the two cannot be confused. According to the standard of filing a case in the Supreme People's Procuratorate, it is of great significance for conviction and sentencing to strictly distinguish the relationship between them.
(3) To accurately and objectively identify indirect economic losses, we should not arbitrarily identify them far-fetched. If we arbitrarily estimate the nonexistent and uncertain indirect economic losses because of the direct economic losses, it will inevitably lead to the exaggeration of the crime of dereliction of duty and make it impossible to handle some cases scientifically and objectively.
(4) There are two tendencies to be opposed to the determination of major losses of public property: one is subjectivism, which is hastily determined without in-depth and meticulous investigation; Second, be cautious, and look around and dare not identify the major losses that have been proved irretrievable by evidence.
(5) whether the major losses can be calculated cumulatively. In the provisions of the criminal law on smuggling, tax evasion, corruption and theft, it can be calculated cumulatively. But there is no provision that the crime of abuse of power and the crime of dereliction of duty can be calculated cumulatively. Starting from the principle of a legally prescribed punishment for a crime, the author believes that there is no legal basis for the cumulative calculation of losses caused by repeated abuse of power or negligence before the introduction of the new law. From the practical situation, only if the behavior of the actor belongs to Xu Xing's crime, there will be multiple behaviors, such as the crime of abuse, or several behaviors that have no independent significance in criminal law can not be treated as harmful behaviors. Because Xu Xing's crime belongs to a simple crime, he must be punished as one crime, and the punishment that is appropriate to the circumstances of the crime should be selected within the statutory punishment range. Several acts of abuse of power or dereliction of duty that have no independent meaning in criminal law obviously do not belong to Xu Xing's crime. Of course, the principle of legal application of Xu Xing's crime cannot be applied, and its social harm should not be accumulated. However, the author suggests that when the legislation is perfected in the future, the cumulative calculation can be stipulated within five years, so as to intensify the crackdown on crimes of abuse of power and dereliction of duty.
Third, the causal relationship between dereliction of duty and harmful results.
1, Overview of Causality between Behavior and Harmful Results
The crime of dereliction of duty is a consequential crime, which not only requires the actor to have the performance of dereliction of duty, but also objectively has the result element of "causing great losses to public property, the interests of the state and the people", and there must be a causal relationship between negligence and this harmful result in criminal law.
The causal relationship of dereliction of duty has both objective existence and factual basis, as well as legal basis. When a phenomenon (illegal behavior of others, natural forces, etc.). ), such as the criminal Li kidnapped and attempted to kill Cheng. When there is the possibility of harmful consequences, a person's dereliction of duty (such as police officer Wang's failure to report to the police or handle it) has nothing to do with this causal chain, but due to the provisions of the law, the staff of state organs with specific obligations have come into contact with this causal chain in this case. The law gives people a specific obligation to take positive measures (police stop criminals from committing crimes) to prevent harmful consequences and break the chain of causality. If the staff of state organs with specific obligations do not do so, the occurrence of harmful results will become an inevitable reality from possibility, and then the dereliction of duty of state organs will become the cause of harmful results, which constitutes a causal relationship in the sense of criminal law.
2. The characteristics of causality between behavior and harmful results.
The author believes that the causal relationship between dereliction of duty and harmful results should have the following characteristics:
First of all, it is related to the obligations of the staff of state organs. Killing, rape, theft, the causal relationship between these acts, is the causal relationship between the actor's physical behavior and its results. The causal relationship of this omission in the crime of dereliction of duty refers to the causal relationship between objectively violating the criminal law or the rules and regulations of state organs, failing to perform specific acts and endangering social results. It is closely related to the specific performance of obligations. If there is no such obligation, there is no inaction at all. If the judge does not stop saving people when facing the gangster's murder, but runs away, and eventually the person is killed, the criminal law cannot consider the judge as a crime of dereliction of duty. Because judges don't have this "duty", on the contrary, patrolling police are different.
Secondly, it also lies in the indirectness of the connection between dereliction of duty and harmful results. As a causal relationship, its connection is often direct, such as shooting a person, starting with a knife and so on. However, in the crime of dereliction of duty, the harmful result caused by the actor's failure or incorrect performance of legal duties depends on the behavior of others and some natural forces, that is, there must be some intermediary conditions, and this intermediary condition is essential for causing harmful results. Miyun "Yunhongqiao" tourists squeezed each other after falling. Xiushui county Yu's suicide, gangster Li's murder and Cheng's murder are indispensable intermediary conditions in the case of dereliction of duty.
Third, it lies in the complexity of the relationship between dereliction of duty and harmful results. The complexity of causality in the crime of dereliction of duty is mainly manifested in the phenomenon that one cause has many effects or many causes have one effect. The former refers to the harmful consequences caused by the dereliction of duty of a national staff, while the latter refers to the harmful consequences caused by the dereliction of duty of several national staff. There will be no difficulty in dealing with multiple causes. As long as it can be determined that multiple harmful consequences are caused by the actor's dereliction of duty, the actor should bear criminal responsibility for all harmful consequences; For multiple causes and one effect, it involves distinguishing the responsibilities of each actor, so as to determine the problem of crime and non-crime, light crime and heavy crime. When dealing with multiple cases of dereliction of duty, we should mainly pay attention to the following three points when determining the responsibility: (1) Look at the strength of the reasons. Generally speaking, dereliction of duty, which plays a decisive role in the occurrence of major losses, is more responsible; (2) Distinguish the responsibilities of leaders and specific staff. If the behavior of the specific implementer is ordered by the will of the competent leader, or the rectification opinions have been put forward during the implementation, which have not been adopted by the leader and caused great losses, the leader should bear the main responsibility. If the concrete implementer conceals the truth, does not ask for instructions, expresses his opinions privately, or does not implement the correct opinions of the leaders and does not act according to the rules and regulations, causing great losses, the concrete implementer should bear the main responsibility. The specific implementer puts forward opinions, but the leader credulously allows or adopts them, or the specific implementer continues to implement them knowing that the instructions and orders of the leader violate the relevant regulations, causing heavy losses, and shall be jointly and severally liable. (3) Distinguish between collective research decisions and individual decisions. If an individual makes a wrong decision, thus causing heavy losses, the individual is directly responsible. If the wrong decision is made through collective research, in this case, all those who agree with the wrong decision should bear the responsibility, and those who preside over the collective research and make the final decision should bear the main responsibility.
Fourthly, the causality of the crime of dereliction of duty also lies in its subjectivity. Civilians from ruins and policemen from ruins have different legal requirements, and people expect different judgments. The former can only be moral, while the latter naturally feels a danger, because people regard the police as the patron saint of personal and property safety. It can be seen that both the will of the legislator and the subjective factors of the actor have great influence on the establishment of the causal relationship of dereliction of duty and infringement. Therefore, we can see that the handling of dereliction of duty cases is often subject to media public opinion. The emergence of this situation, on the one hand, is the problem of legislation itself, on the other hand, there are subjective evaluation factors of case handlers. The author believes that in the face of the social status quo of low efficiency of administrative organs, low quality of public officials, frequent safety accidents and deteriorating public security situation, as legislative organs, procuratorial organs and judicial organs, we should establish a positive causal relationship judgment theory for dereliction of duty and abuse of power. In order to intensify the crackdown on the staff of state organs who fail to perform their duties and perform their duties incorrectly, and improve the reputation and prestige of state organs among the people. Because the law stipulates the rights and obligations of the parties to adjust social relations, it makes social relations orderly. When a specific person in social relations should perform a certain legal obligation but does not, social relations cannot develop in the direction of legal guidance, but only in the direction of harmful results. Can we expect the public security situation in a region to improve when the police in the region fail to deal with the police and cannot be investigated by law? I'm afraid what we see is that murders are frequent and difficult to solve.