徇私舞弊不移交刑事案件罪若干问题探析

现行刑法规定徇私舞弊不移交刑事案件罪之后,理论及实践中对该罪的主客观要件等基本问题的争议甚多,对该罪的罪名、罪状、法定型的修订建议更是歧见迭出.文章首先根据现行立法对该罪的基本构成的相关要件进行了全面阐述,探讨了该罪在立法领域的缺陷,建议将本罪罪名更改为"故意不移交刑事案件罪",在基本构成要件中取消"徇私舞弊"和"情节严重"的规定,在规定基本法定型的基础上,规定升格法定型并明确其构成条件,总体上提高本罪之法定型.

Analyses on Several Questions About the Crime of not Handling over Criminal Case with Malpractice

After the current penal code stipulated the crime of not handling over criminal case with malpractice, many disputes appeared both theoretically and practically on the subjective and objective factors of the stipulation. More revising suggestions about the criminal charges, facts and legal type of the crime also appeared incessantly. This essay focuses on the basic composing items of the crime with reference to the current legislation, inquires into the defects of the legislation realm, puts forward suggestions about changing the criminal charges to intentionally not handling over criminal case. In the basic composing items suggestions are also put forward to cancel the stipulations of profit oneself to embezzle and details serious in order to promote the overall legal type of this crime.