论文部分内容阅读
刑法理论在滥用职权和玩忽职守的关系问题上聚讼不定,司法实践在相关法律的适用上也存在争议。从客观和主观两方面区分滥用职权罪和玩忽职守罪,存在理论上的局限和现实中的困境。基于公共职务权责一体的理论,滥用职权和玩忽职守经常会发生竞合、以致难以区分。故意和过失的罪过形式也不应作为二者区分的标准,滥用职权罪和玩忽职守罪都可以是故意犯罪和过失犯罪。应当重新认识滥用职权和玩忽职守的关系,对《刑法》第397条进行重构,并确定此条为“滥用职权、玩忽职守罪”的选择性罪名。
Criminal law theory in the abuse of power and dereliction of duty on the issue of litigation, judicial practice in the application of relevant laws is also controversial. From objective and subjective distinction between the abuse of power crimes and neglect of duty, there are theoretical limitations and the real predicament. Based on the theory of the integration of power and responsibility in public office, it is often difficult to distinguish between abuse of office and negligence. Intentional and negligent forms of sin should not be used as the distinction between the two standards, abuse of power and neglect of duty can be intentional crimes and negligent crimes. We should rediscover the relationship between abuse of authority and dereliction of duty, reconstruct Article 397 of the Criminal Law, and make sure that this article is an alternative offense of “abuse of power and neglect of duty”.