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由于在立法上存在前后矛盾和刑法理论界各执一词,导致徇私舞弊型渎职犯罪的罪数认定有作一罪论处的,也有作数罪并罚的混乱局面,严重影响了渎职犯罪的查处工作。本文认为徇私舞弊型渎职犯罪中行为人渎职而同时又收受他人贿赂的行为,是实施了二个犯罪行为,构成实质的二罪,且二罪间不存在法条竞合或想象竞合的关系,同时牵连犯也不能全面评价该类犯罪。对徇私舞弊型渎职犯罪应实行数罪并罚,这是符合罪数理论的主张和刑法的基本规定,也是我国当前打击腐败的现实需要。
Due to the existence of inconsistencies in the legislation and the practice of the criminal law theory, the crime of favoritism and malfeasance of dereliction of duty is found to have a guilty side and a chaotic situation of concurrent punishment for several crimes, seriously affecting the investigation and handling of dereliction crimes jobs. This article thinks that the behavior of dereliction of duty for malpractices favoritism and dereliction of duty at the same time accepting bribes from other people is the implementation of the two crimes, constitute the essence of the two crimes, and there is no law between the two crimes or imagination competing relationship At the same time implicated criminals can not fully evaluate such crimes. This should be done in accordance with the theory of crime and the basic provisions of criminal law. It is also the current need of our country to combat corruption.