滥用职权罪立法完善问题研究——以韩国、日本及《模范刑法典》相关规定为视角

Study on the Legislation Perfection of Power Abusing Crime——From the perspective of South Korea,Japan and the Relevant Provisions of Model Penal Code

我国的滥用职权罪立论于结果无价值论,属于典型的结果犯。但是,与一般结果犯不同的是,该罪仅以"重大结果"为犯罪成立要件,即只有致使公共财产、国家和人民利益遭受重大损失或者情节特别严重的滥用职权行为才是本罪的规制对象。国家通过立法手段,政策性地提高了该罪的入罪门槛,将事实上具有法益侵害性的行为予以非犯罪化,致使一部分滥用职权行为被放纵,此举有违现代刑法的实质正义理念和法益保护原则,不利于预防和打击渎职类犯罪,有待修法予以完善。

In China, the crime of abuse of authority is buitt on the basis of the theory of Erfolgsunwert,is one typical sort of consequential offense. Nevertheless, what differs from ordinary consequential offenses is that only ＂grave consequence＂ could lead to the establishment of this very crime, i. e. , it is only heavy losses of public property, of interest of the state and the people, and abuse of authority that is serious enough that may become the regulated object of this crime. The state improves the criteria of establishment of this crime via legislation, this would result in decriminalization of some behavior that is de facto invasive to legal interest, leading to part of abuse of authority indulged. This is against to the idea of substantial justice and the doctrine of protection of legal interest of modern criminal law, and is to the advantage of prevention of and fight against the crime of dereliction of duty, which shall be corrected via legislation amendment.