徇私枉法罪若干问题研究

发布时间：2018-06-25 21:08

本文选题：有罪的人 + 追诉　；参考：《聊城大学》2016年硕士论文

【摘要】：在刑事司法实践中,徇私枉法罪是一种易发、高发的渎职类型的职务犯罪。虽然我国刑法及相关法律对徇私枉法罪进行了一定的规制,但法律具有滞后性,同时在司法实务中缺少具体的司法解释,再加之理论界的见解不一致,必然导致对徇私枉法罪的法律规制、法律实务等相关问题的界定带来诸多争议和困惑。为此,本人在前人研究的基础上对本罪的犯罪客观方面、犯罪主体、犯罪主观方面、司法认定及立法完善方面的争议问题进行再研究,提出自己的认识。在本罪的犯罪客观方面:基于徇私枉法罪典型的渎职性和刑法体例的一贯性,建议把“利用职务便利”在我国刑法中明确规定为徇私枉法罪的客观必备要件;对“有罪的人”的认定应采用证据证明标准,只要是有证据证明被包庇的人在形式上构成犯罪即可,至于被包庇的人是否会最终被人民法院依法裁判为实质有罪,并不影响行为人构成徇私枉法罪,这样才真正符合刑法保护法益的目的,并且在司法实践中也具有可行性和可操作性;徇私枉法罪中的“追诉”应是对各司法机关不同刑事诉讼活动的统称,体现在刑事诉讼不同阶段的不同职能活动中,具体应包括侦查机关的立案、侦查、检察机关的审查起诉和审判机关的刑事审判活动及各司法机关依法采取的强制措施;司法工作人员“故重故轻追诉”的行为,同样具有社会危害性,理应在刑法中明确规定,并追究其枉法行为的刑事责任;“不作为”可以构成徇私枉法罪。在本罪的犯罪主体方面:将司法工作人员界定为担负侦查、起诉、审判或监管职责并享有上述相应职权的工作人员;分析了公安人员、司法辅助人员及政法委工作人员利用司法职权构成本罪的情形;单位不应成为本罪的主体;非司法机关工作人员和司法机关工作人员相互串通、勾结,与司法工作人员具有共同的犯罪故意,且共同实施枉法追诉、裁判行为的,应当认定构成本罪的共犯。在本罪的犯罪主观方面:“徇私”、“徇情”的含义为徇私情、私利;“徇私”包含徇“个人”之私和徇“单位、小团体”之私;“徇私”、“徇情”属于本罪的犯罪主观方面的犯罪动机,但不应作为本罪的必备要件,建议在刑法条文中移除;本罪只能由直接故意构成,间接故意不能构成本罪。在本罪的司法认定方面,分析了本罪的罪与非罪,本罪的犯罪形态及罪数问题。在本罪的立法完善方面,除上述建议外,同时建议将“违背事实和法律”中的“和”改为“或”,增加资格刑和财产刑作为本罪的刑罚种类。
[Abstract]:In the practice of criminal justice, the crime of perverting the law for selfish ends is a kind of duty crime which is easy to make and high in incidence of malfeasance. Although the criminal law and related laws of our country regulate the crime of perverting the law for selfish ends, the law is lagging behind, and at the same time, there is a lack of concrete judicial interpretation in judicial practice, in addition, the opinions of the theorists are not consistent. It will inevitably lead to the legal regulation of the crime of bending the law for favoritism, legal practice and other related issues leading to a lot of controversy and confusion. Therefore, on the basis of the previous studies, I re-study the objective aspects of the crime, the subject of the crime, the subjective aspects of the crime, judicial identification and legislative perfection of the controversial issues, and put forward their own understanding. In the objective aspect of the crime: based on the typical malfeasance of the crime of favoritism and the consistency of the criminal law style, it is suggested that "utilizing duty convenience" be clearly stipulated as the objective essential element of the crime of bending the law for favoritism in the criminal law of our country; The standard of proof should be adopted in the determination of "guilty person", as long as there is evidence to prove that the sheltered person constitutes a crime in form, and whether the sheltered person will eventually be judged by the people's court as substantial guilt according to law, It does not affect the crime of perverting the law for favoritism, so as to truly conform to the purpose of criminal law protection law, and it is also feasible and operable in judicial practice. The "prosecution" in the crime of bending the law for favoritism should be a general term for the different criminal litigation activities of various judicial organs, which should be embodied in the different functional activities of different stages of criminal proceedings, including the filing and investigation of the investigation organs. The examination and prosecution of procuratorial organs, the criminal trial activities of the judicial organs and the compulsory measures adopted by the judicial organs according to law; the act of judicial personnel "attaching great importance to prosecution" is also harmful to society, and it should be clearly stipulated in the criminal law. And investigate their criminal responsibility for perverting the law; omission can constitute the crime of bending the law for personal gain. With regard to the subject of the crime, the author defines a judicial staff member as a staff member who has the duties of investigation, prosecution, trial or supervision, and who has the corresponding functions and powers mentioned above, and analyzes the public security personnel, The use of judicial authority by judicial auxiliary personnel and the staff of the political and legal Commission to constitute this crime; the unit shall not become the subject of the crime; and the non-judicial organ staff and the judicial organ staff shall collude and collude with each other, Those who have the common intention of committing a crime with judicial staff and jointly commit the prosecution and adjudication of the perversion of the law shall be identified as the accomplices constituting the crime. In the subjective aspect of the crime: "favoritism", "favoritism" means favoritism and self-interest; "favoritism" includes the selfishness of "individuals" and "units and small groups"; and "favoritism" means "favoritism". "emotion" belongs to the subjective motive of the crime, but it should not be regarded as the necessary element of the crime. It is suggested that the crime should be removed from the articles of the criminal law; the crime can only be constituted by direct intent, but not by indirect intent. In the aspect of judicial cognizance of this crime, it analyzes the crime and non-crime, the crime form and the crime number. In the legislative perfection of this crime, in addition to the above suggestions, it is also suggested that the sum of "contrary to facts and laws" should be changed to "or", and that the penalty of qualification and property should be added as the punishment category of this crime.
【学位授予单位】：聊城大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.393

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