职务行为的正当性之判断

Judgment of Justifiable Performance of Public Duties

职务行为对于实现国家职能、维护社会秩序而言是必不可少的,因此,很多国家将其规定为正当行为,认为其即使符合犯罪构成要件,也不一定构成犯罪。我国虽未明文规定排除职务行为的犯罪性,但在实践中,对于执行职务造成损害的,通常也不作为犯罪处理。据此,出于对私权利的保护和合理排除职务行为的犯罪性的需要,应当建立判断职务行为正当性的标准。

The performance of public duties plays an important role in maintaining social order. And under the laws of many different countries, even such performance accords with the constitutions of a certain crime, it may still be considered justifiable. Similar provisions aren＇t written in our criminal law, but in practice, we often take the same step. But to protect private rights, the offenses which disguise as performing duties should also be picked out and given due punishment. And with this intention, the paper discusses what the performance of public duties means, the basis of its justification and how to judge it.