徇私枉法罪原案两个问题的探讨

对徇私枉法罪原案的“有罪”理解及其管辖权的归属问题不仅在理论界存在较大争议,而且在司法实践中认定不一,直接影响了本罪的司法适用。本文通过辨析认为,“有罪”应理解为有证据证明的犯罪,而非法定之罪;对于原案的管辖权应视具体情况分别由相应的公安机关、检察机关和审判机关来行使。

Discussing on Two Problems of the Original Crime Case of Bending the Law to Serve One's Friends or Relations

The cause of being guilt in the original crime case of bending the law to serve one's friends or relations and the jurisdiction over it is controversial both in theoretical circle and judicial practice. This brings direct effect on the application of the crime. After making an analysis, the author deems that guilt should not be regarded as statutory crime, but crime with evidence to prove. Therefore, the jurisdiction should be separately executed by public security organ, procurator organ and adjudication organ in accordance with particular cases.