滥用职权罪与玩忽职守罪的司法界分——由一个典型案例出发-judicial division of crime of abuse of power and crime of dereliction of duty - starting from a typical case.docx

AbstractAs in provision 397 of “Criminal Law of the PRC”doesn’t provide accurately dereliction of duty and abuse of authority, they both provide in the same article. How to accurately distinguish them cause a considerable controversy in theoretical circles and judiciary practice sectors.With case analysis perspective and considering the relevant criminal law doctrine, I am trying to find very reasonable and practical scientific approach to distinguish the two crimes. That is good way to deal with problems in the practice of application. At the same time, I admit that the fundamental way to solve the problem is to improve the constant of Criminal Law.There are about two thousand words in this paper, the structured is as following:The first and second parts are the introduction to Zhang and Wang, Lee case. This is a controversial case.The third part summarizes the focus of the dispute in the case: Zhang, Wang and Lee are a crime of abuse of power or dereliction of duty.The forth part, at an academic and judicial practice point of view, after analyzing three person’s sin of subjective and objective performance, I am going to find out the real reasons of controversy. After analyzing, I believe there are two reasons: First, the provision 397 of the Penal Code is relatively vague. Section 397 of the Penal Code provides the crime of dereliction of duty and abuse of power belong to one provision, the provision is simple counts. One of shortcomings of such provisions is that the connotation and extension of crimes are defined not clear. That led to disputes in theory and chaos in judicial application. Second, the reasons are the conflicts between the fuzzy of the concept itself and complexity of objective behavior forms. Although the law and theory of law is coming from life, they are different from life. Once a legal norm has formed, it has tendency to run away from the real things. Therefore, there are manycontradictions in judicial practice. There are two ways to resolve