裁判规范还是行为规范——对滥用职权罪的功能性考察

Norms of Adjudication or Norms of Behavior: Function of Abuse of Official Powers

刑法规范具有行为规范和裁判规范的功能。滥用职权罪应以行为规范功能为先,以“重大损失”作为构成要件限制了其行为规范功能;司法上的扩张解释虽然有助于实现该功能,却又危及罪刑法定原则。滥用职权罪之行为规范立足于规范的实质根据和价值取向,构造为义务规范,旨在保障职权的安全行使。立法和司法工作应当遵循行为规范功能,强化义务意识,预防优先。

Criminal norms possess both the functions of adjudication and behavior. While convicting the abuse of official powers, we should focus on the function of behavior norms. However, taking ＂heavy losses＂ as a constitutive requirement of the crime will certainly confine the function of behavior norms. Though a liberal judicial interpretation is conducive to the performance of the function, it will jeopardize the principle of nullum crimen sine lege. The behavior norms of abuse of official powers are based on its substantive authorities and values, which in practice appear as obligatory norms, purporting to exercise official powers smoothly. The legislative and the judiciary activities should be consistent with the function of behavior norms, while the obligatory consciousness should be strengthened and prevention should be given priority.