职务犯罪法条竞合法理探析——兼评《关于办理渎职刑事案件适用法律若干问题的解释(一)》

Discussing on the Principle of Concurrence of Articles Applied to Duty Crime

职务犯罪中法条竞合的适用问题争议颇多,而正确适用法条竞合取决于罪名内涵的正确厘定和法条竞合原理的准确把握。收受型受贿罪与渎职罪之间、徇私型渎职罪与受贿罪之间其实并不存在法条竞合;特别关系的法条竞合中重法优先的法理及法条竞合劣位法的普遍兜底作用均不存在,符合具体类型的渎职罪规定的行为不得以滥用职权罪或玩忽职守罪论处。《关于办理渎职刑事案件适用法律若干问题的解释(一)》第3条及第2条第1款符合法条竞合法理;但其第2条第2款值得商榷,应采用补救方案。

The numerous disputes about how to apply concurrence of articles to duty crime are widespread in China. The core of using concurrence of articles is decided by two sides： one is to analyze the connotation of crime, theother is to understand the principle of concurrence of articles. Accordingly, There is no concurrence of articles is in fact advisable between Received Bribe Crime and malfeasance crime, between malfeasance crime for benefit and bribe-taking crime as well. And the so called severe articles＇ priority to the lenient articles on special relationship of concurrence of articles does not exist, the same as inferior articles with generally protective role, which means that offences satisfied with specific malfeasance crime cannot be convicted to abusing authority or derelict crime. Article 3 and section 1 of article 2 in The Interpretation of law application for Derelict Criminal Cases One promulgated by both the Supreme Court and the Supreme Procuratorate are filled with legal principle. However section 2 of article 2 should be rethought, in any events, and the judicial application should adopt remedy therefore.