从滥用职权罪的罪过形式谈起——再探滥用职权罪

Speaking From The Guilty Fault Form Of Abusing One's Power----Visiting The Crime Of Abusing One's Power Again......

关于滥用职权罪的罪过形式,观点颇多,但实际上,其罪过形式只能是故意,包括直接故意和间接故意。司法实践中将本应定玩忽职守罪的过失行为,以及将虽出于故意但已构成其他更为严重犯罪的行为定为滥用职权罪的做法令人质疑。在目前情况下,应按照特别法优于普通法以及重法优于轻法的原则处理第397条滥用职权罪同其他相关条文间的法条竞合关系。另外,没有必要将滥用职权罪的主体再次恢复为“国家工作人员”,应提高和增设该罪的法定刑,将该罪和玩忽职守分列两个条文,重视对该罪未遂的惩处。

About the guilty fault form about abusing one's power, there are a lot of views. But in fact, Its fault form can only be on purpose, including direct on purpose and indirect on purpose. In judicial practice, it is oppugned that determine negligence act which should be determined as neglect one's duties, and those do on purpose but formed even more serious behaviors of crimes as abusing one's power guilty. Presently, should come and deal with the relation between abusing one' s power crime of clauses 397th and other relevant clauses according to the principle that special law are superior to the ordinary law and heavy law are superior to the light law, In addition, it is unnecessary to resume principal part of abusing one's power guilty for 'national staff member'again, we should improve and set up guilty legal measurement of penalties in neglecting one's duties crime, divide them into two clauses of crime, and pay attention to the punishment of abortive crime on it.