“徇私舞弊”在刑法中的功能定位及立法重构

On the Functions of"Playing Favoritism and Committing Irregularity"in Criminal Law and Its Legislative Reconstruction

我国刑法中对于徇私舞弊的规定罪名众多,法条关系庞杂,功能定位不一,理论分歧与司法适用问题突出,尤其是涉及一罪与数罪问题、量刑上的重复评价和轻重倒置问题,难以通过解释的方法加以解决。从徇私舞弊的性质出发,将徇私舞弊明确为滥用职权罪的“从重处罚”情节具有合理性。这就要求在立法上,徇私舞弊不能作为定罪情节设置特别法条,而必须依附于滥用职权罪的法定刑规定,否则“从重处罚”就会失去参照的基础,从而异化为“加重处罚”。在此基础上,有必要对我国刑法中的徇私舞弊及渎职犯罪进行体系性的立法重构。

The provisions on"playing favoritism and committing irregularity"in the criminal law of China have some problems such as various applicable offences,complicated relationship between articles,and different functions,thus resulting in major theoretical differences and problems in judicial application,which are hardly solved through interpretation,especially those related to a single count of crime and multiple counts of crime,repeated evaluation while sentencing,and severer punishment for a less harmful act and lenient punishment for a more harmful act.According to the nature of playing favoritism and committing irregularity,it should be regarded as a sentencing circumstance for"heavier punishment"for the crime of abuse of power rather than a sentencing circumstance for"aggravated punishment".This requires that"playing favoritism and committing irregularity"should not be regarded as a circumstance for conviction and thus there is no special article on it in the legislation,and it must be attached to the provisions on legally-prescribed punishments of the crime of abuse of power,otherwise"severer punishment"will have no benchmark and improperly become"aggravated punishment".of'favoritism or irregularity'and the crimes of dereliction of duty be systematically reconstructed.On basis of this,we should systematically conduct a legislative reconstruction of"playing favoritism and committing irregularity"in the criminal law.