错位与归位:滥用职权罪立法的检讨与重构

Dislocation and Replacement: Criticism and Reconstruction of the Legislation of Crime of Power Abuse

对于修订后的刑法所新设的滥用职权罪,目前主流的观点认为其是故意犯罪,但相关的论证实难令人信服。合理的思路或许是区分不同的层面进行解读:从实然的角度分析,现行刑法中确立的滥用职权罪是过失犯罪;但从应然的角度反思,滥用职权罪的正确定位应是故意犯罪。为此,应当通过立法修正的形式对其进行理性重构。

The leading viewpoint as to crime of power abuse established in the revised criminal law newly believes that crime of power abuse is an intentional crime. However it is difficult to make people agree with. The reasonable thought maybe is to analyse it from various angles. On one hand, crime of power abuse in the revised criminal law is really a negligent crime. On the other hand, crime of power abuse should be intentional crime ideally. Therefore, we should reconstruct it reasoningly by lawmaking.