渎职罪中的徇私概念问题探讨

理论界与实务界对刑法分则第九章渎职罪中规定的"徇私"一词应作何种理解颇具争议.价值学意义上的刑法,其本质是为了保护自由,是为了维护公平和正义.从这一角度来分析,徇私应作包括徇情的理解.刑法的解释应以立法者的原意为根据,然而在立法原意无法探明的情况下,则应以立法目的为根据.基于此,徇私应包含有徇单位之私情与私利的意思.

A Discussion of Acting Unfairly From Selfish Motives

There is a great dispute about how to comprehend the words "acting unfairly from selfish motives" which the ninth chapter of criminal law stipulates between the theory world and the practice world.The inward nature of criminal law is to protect freedom on the point of value and maintenance justice and righteousness.In this light,acting unfairly from selfish motives should include practicing favoritism.Comprehending the criminal law should be based on the original intension of the legislative body,while if there is no way to verify the original intension of legislation,it should be on basis of legislative purpose.Therefore,acting unfairly from selfish motives should include acting unfairly from unit's motives and unit's favoritism.