网络安全检测|网络安全服务|网络安全扫描-香港墨客投资移动版

In addition to supervision and regulation, there must be rules concerning punishment and accountability for dereliction of duty or malpractice. Chapter IX Legal Liability has 9 items, of which Article 98 is the most important:

违反本法规定，地方各级人民政府、县级以上人民政府卫生健康主管部门和其他有关部门，滥用职权、玩忽职守、徇私舞弊的，对直接负责的主管人员和其他直接责任人员依法给予处分。

In violation of the provisions of this Law, if the local people’s governments at all levels, the health departments of the people’s governments at or above the county level and other relevant departments abuse their powers, neglect their duties or engage in malpractices for personal gain, the directly responsible personnel in charge and other directly responsible personnel shall be punished according to law.

这是政府及相关部门直接负责人员的违法责任。相较于第九十条的主要针对政府或者部门履职不到位，第九十八条则针对的是具体公务人员的不法作为，即政府或其有关部门的直接负责的主管人员涉嫌滥用职权、玩忽职守、徇私舞弊的，必须依法问责。

The directly responsible personnel of the government and relevant departments shall shoulder the corresponding responsibilities. Compared with Article 90, which is mainly aimed at the failure of the government or departments to perform their duties properly, Article 98 is aimed at the illegal acts of specific public servants, that is, if the directly responsible person in charge of the government or its relevant departments is suspected of abusing his power, dereliction of duty or engaging in malpractices for personal gain, he must be held accountable according to law.

对于涉嫌犯罪的行为，主要有《监察法》统领性规制。除此而外，公职人员滥用职权、玩忽职守、徇私舞弊，还有党纪政纪惩处。特别是，《刑法》对此详细规定了不同情形的刑事责任。滥用职权是指国家机关工作人员故意逾越职权，违反法律决定、处理其无权决定、处理的事项，或者违反规定处理公务的行为。如果该行为致使公共财产、国家和人民利益遭受重大损失，则可能构成滥用职权罪。玩忽职守是过失的主观心态，主要是指国家工作人员工作中严重不负责任的行为。若由此导致国家和人民生命财产受到重大损失，则可能构成玩忽职守罪。具体见《刑法》第397条第一款规定。而“徇私舞弊”行为，并不单独构成“徇私舞弊罪”，系指为徇个人私利或者亲友私情的行为，主观方面是故意 ,即“明知”不可为而为，是滥用职权、玩忽职守罪的加重情节。《刑法》第397条第二款规定：“国家机关工作人员徇私舞弊，犯前款罪的，处五年以下有期徒刑或者拘役;情节特别严重的，处五年以上十年以下有期徒刑。本法另有规定的，依照规定。”由于这种行为是从个人利益出发，置国家利益于不顾，所以主观恶性要比第一款的规定严重，故本款规定了较重的处罚。

Any suspected criminal acts shall be punished according to the regulations of the Supervision Law. Moreover, public officials shall be given punishments by administrative and Party discipline agencies for abusing power, neglecting duties, or engaging in malpractices for personal gain. In particular, the Criminal Law specifies criminal responsibility in different situations. Abuse of power refers to the behavior of state functionaries who intentionally overstep their powers, violate legal decisions, handle matters that they have no right to decide or handle, or handle official duties in violation of regulations. If the act causes heavy losses to public property, the interests of the State and the people, it may constitute a crime of abuse of power. Dereliction of duty is the subjective mentality of negligence, which mainly refers to the serious irresponsible behavior of state functionaries in their work. If such act causes heavy losses to the lives and property of the State and the people, it may constitute a crime of dereliction of duty. See Article 397, Paragraph 1, of the Criminal Law. The act of “engaging in malpractices for personal gain” does not constitute the crime of “engaging in malpractices for personal gain” alone. It refers to the act of indulging in malpractices for the benefit of himself or relatives and friends. Such act is out of subjective intent, that is, “knowing” that he cannot do it but do it, which is an aggravating circumstance of the crime of abuse of power and dereliction of duty. Paragraph 2 of Article 397 of the Criminal Law stipulates: “Any functionary of a state organ who commits the crime mentioned in the preceding paragraph by engaging in malpractices for personal gain shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years. Where there are other provisions in this Law, such provisions shall prevail.” Since this kind of behavior is based on personal interests and ignores the interests of the State, the subjective malice is more serious than the provisions of Paragraph 1, so this paragraph stipulates heavier punishment.

5 结束语

5 Concluding Remarks