滥用职权罪客观要件的教义学解读——兼论故意·过失的混合犯罪类型

On the Mixed Criminal Types of Intentional and Negligent Crimes

滥用职权罪保护的是双重法益:职务行为的公正性是基础性法益,公共性权益则作为衍生性的法益。从职务行为的公正性出发,滥用职权行为具有四种表现形式。《刑法》第397条第2款中的“徇私舞弊”,乃是作为加重的不法行为类型而存在,其中“徇私”属于主观的动机要素,“舞弊”属于客观的行为要素,二者共同表征不法程度的加重。滥用职权罪中的重大损失,是滥用职权行为所蕴含危险的现实化,其体系地位类似于过失犯中的结果要素。滥用职权罪中结果归责的认定,并不以行为人对重大损失的出现具有因果性的支配为必要,在作为的情形中,只要求行为对重大损失的出现贡献了一定的作用力。鉴于滥用职权罪在不法与罪责的构造上具有特殊性,有必要发展一种故意过失的混合犯罪类型的理论,以解决因立法修改而造成的总则与分则之间的错位现象。

The crime of abusing authority infringes double legal interests;one is impartiality of an official duty act as fundamental, and the other is personal rights and public interests as derivative. The conduct of abusing authority needs be interpreted based on the legal interests of impartiality of an official duty act, and it has four forms of manifestation. Meanwhile ,the term of " malpractice out of personal considerations" in Section 397 Paragraph 2 of the Penal Code should be understood as aggravated conduct of wrongdoing. With regard to " out of personal considerations", it is a motive of the defendant as subjective element, and " malpractice" belongs to a constitutive element of conduct;both of them exist as aggravating elements of wrongdoing." Heavy losses" in the crime of abusing authority has a position of consequence element like in negligent crimes, and such losses result from the actualization of the dangers inherent in the conduct of abusing authority. In the crime of abusing authority, the determination of result imputation does not require that the defendants act constitute a dominating force in the causal process resulting heavy losses, while it is only presupposed that the act plays an active part in their appearance. In view of its special constructions in the two levels of wrongdoing and culpability, the crime of abusing authority should be regarded as an independent hybrid crime type of intention and negligence besides intentional crime and negligent crime. Surely, this will help to resolve a growing disparity between general part and special part in the Chinese criminal law.