【作者】 蒋丽；

【导师】 吴仁碧；

【作者基本信息】 西南政法大学 ， 刑法学（专业学位）， 2016， 硕士

【副题名】以某县新合办工作人员刘某滥用职权、玩忽职守案为例

【摘要】 针对农村人口的新型农村合作医疗(以下简称新农合)制度建立至今已实施十余年,在新农合的实施过程中,各地政府的做法基本都是按照上级文件规定成立各级具体经办机构,并赋予其相应的审核或监管职能职责,该类经办的机构工作人员由于玩忽职守或者滥用职权导致新农合补偿资金流失的情况常有发生,对涉案工作人员是否能以渎职罪追究其刑事责任在实践中争议较大。大多数法院是以其构成相关渎职犯罪做出判决,但其是“在受国家机关委托代表国家机关行使职权的组织中从事公务的人员”(以下简称受委托组织中从事公务人员)渎职还是国有事业单位人员渎职抑或是国家机关工作人员渎职的认定并不统一。也有个别法院以新农合专项基金由参合农民实际享受了为由,不认为其渎职行为造成了财产损失,作不定罪判决。笔者以某县新合办工作人员刘某涉嫌滥用职权、玩忽职守罪案为例,对前文所述的争议问题进行分析研究,以期有利于今后能正确定处类似案件。本文分为以下三个部分:第一部分是案件基本情况。首先介绍了案情,以及对本案定性的三种争议观点:一是构成滥用职权罪、玩忽职守罪,二是构成国有事业单位人员滥用职权罪、国有事业单位人员失职罪,三是无罪。其次归纳了争议焦点:一是如何理解立法解释渎职罪主体中的受委托组织中从事公务人员含义;二是如何理解《刑法》规定的国有事业单位人员滥用职权罪、国有事业单位人员失职罪、滥用职权罪、玩忽职守罪中的“重大损失”含义。第二部分是相关问题的法理分析。法理分析部分又分为两个层次进行论述:一是对渎职罪主体中“国家机关工作人员”含义进行分析研究,下面又分别研究分析了法律、司法解释规定的国家机关工作人员及本质特征,准国家机关工作人员含义以及受委托组织中从事公务人员含义。认为认定行为人是否属于刑法规定的国家机关工作人员,不能以行为人是否具有国家机关工作人员身份来认定,而应按其从事的职务是否系代表国家对社会公共事务进行管理而定。受托人员的认定则应看委托者是否为国家机关、委托事项是否系代表国家对社会公共事务进行管理来认定。二是研究分析了《刑法》规定的国有事业单位人员滥用职权罪、国有事业单位人员失职罪、滥用职权罪、玩忽职守罪四个罪中“重大损失”的含义,结论是:前两个罪只能是经济损失,后两个罪除经济损失外还可包括人身损害等非经济损失,四个罪的经济损失流失的去向并非是与行为人有亲友关系的单位或者个人,即受益人是与行为人无亲友关系的相关民众,但只要是不合规的受益也属四个罪中的“重大损失”。第三部分是案件分析结论。这部分结合前述法理分析部分笔者赞成的理论观点,认为争议案件中刘某属于受委托组织中从事公务人员,构成滥用职权罪、玩忽职守罪主体,其行为导致新农合资金为不合规的人受益,即使受益人并非行为人亲友也属于两罪规定的“重大损失”,刘某的行为构成滥用职权罪、玩忽职守罪,应进行数罪并罚。更多还原

【Abstract】 The New Rural Cooperative Medical Care(hereinafter referred to NCMS)System specific to rural population has been established over a decade.During its operation,the basic practice of local governments is to set up management institutions of different administrative levels in accordance with documentations issued by superior government,and grant them corresponding examination and supervision function.The loss of compensation fund is a common occurrence due to the fact that the staff of such institutions are careless by not performing their duties earnestly or abusing their authorities.It is very controversial in practice whether the staff involved shall be held criminally liable for crime of dereliction of duty.Most of the courts return verdicts by affirming such behavior constitute relevant crime of dereliction of duty;however,it is unanimous regarding the status when the staff commit the crime in,are they the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs,or staff of State-owned enterprises,or functionaries of the State organs.Given that the peasant engaged in NCMS actually benefit of the special fund,few courts did not regard the dereliction of duty as causing property loss and returned its verdict of no condemnation.The author takes the case study of Liu who worked in a NCMS office in a county and was suspected being involved in the crime of abuse of authority and dereliction of duty,which was investigated and prosecuted by the procuratorate where the author is working.In this essay,there are analysis and research regarding the above-mentioned controversial issues in order to correctly determine on the nature and deal with similar cases in the future.This essay is presented in the following three parts:First part is the general information of the case.Firstly,introduce the facts of the case,there are three controversial opinions regarding the determination of the case’s nature: the staff involved(1)constitutes the crime of abuse of authority and dereliction of duty;(2)constitutes the crime of abuse of authority by staff of State-owned enterprises and dereliction of duty by staff of State-owned enterprises;(3)is not guilty.Then,analyze the focuses of controversy:(1)how to understand the meaning of legislative interpretation regarding the subject of the crime of dereliction of duty,which is “the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs”;(2)how to understand the meaning of “loss” in the crime under PRC Criminal Law regarding the crime of abuse of authority,dereliction of duty,abuse of authority by staff of State-owned enterprises,dereliction of duty by staff of State-owned enterprises.Second part is the legal analysis of relevant issues,which is presented by two levels:Analyze and study the meaning of the subject “functionaries of the State organs” in the crime of dereliction of duty;separately analyze and study the “functionaries of the State organs” under laws and legislative interpretations and its essential characteristics,the meaning of quasi-functionaries of the State organs and “the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs”.It is considered that whether the actor is the functionaries of the State organs under the Criminal Law shall not be identified by his identity of the functionaries of the State organs,but shall be identified by the duty he is engaged in if he manages public affairs on behalf of the State.The assignee shall be identified by confirming whether the mandatory is the State organs and the assigned matters are the public affairs managed by the assignee on behalf of the State.Analyze and study the meaning of “loss” in the crime under PRC Criminal Law regarding the crime of abuse of authority by staff of State-owned enterprises,dereliction of duty by staff of State-owned enterprises,abuse of authority and dereliction of duty.The conclusion is that the first two crimes only refer to economic loss;the last two crimes refer not only to economic loss,but also non-economic loss including personal injury etc.The flow of economic loss of the four crimes is not related to the units or individuals who have kinship with the actor,which means the beneficiaries are the common people who have no kinship with the actor;as long as the benefit is generated by acts which violate the laws and regulations,it belongs to the “loss” of the four crimes.Third part is conclusion of analysis.In this part,it is integrated the theoretical opinion that the author agrees with which is presented in the legal analysis part.The author considers that in the controversial case,Liu is the staff who are engaged in public affairs in the organizations exercising authority entrusted by and on behalf of the State organs,and Liu is the subject of the crime of abuse of authority and dereliction of duty.His acts lead to the fact that the capital of NCMS is benefited by the units or individuals who are not the legitimate subject.Although the beneficiaries are not the kith and kin of the actor,the loss belongs to the “great loss of the interests of public property,the State and the people”.Liu’s acts constitute the crime of abuse of authority and dereliction of duty.更多还原