玩忽职守罪在实践中存在着认定难、裁判尺度不统一的问题。尤其是因果关系的认定，由于争议过大，实践中常以刑罚的轻缓化回避因果关系的论证。刑法总论中关于因果关系的研究颇为繁盛，但与分论尤其是玩忽职守罪等具体罪名的结合应用不足。玩忽职守罪本身具有因果关系间接性与复杂性、处于过失与不作为的交叉阵地、职责设定分散等特点，同时实践中又存在归责判断的规范性不足、唯结果论的问题。在传统的因果关系理论中，必然说与偶然说、危险的现实化理论、缓和的结果归属理论及客观归责理论均具有代表性，但前三种理论都存在不足之处，而客观归责理论优势更明显：规范化思考程度更高，能够契合事实归因与规范归责的思考路径，在纷繁复杂的风险社会背景下可以进行动态运用，下位裁判规则更为明确。同时客观归责理论也与玩忽职守罪相吻合，其核心即法规范保护目的有利于促进裁判者对玩忽职守罪因果本质的探索，也与法定犯因果关系的拟制性互动，更重要的是，它所带来的规范的刑法思维和方法论意义远大于规则的创新。结合实际案例，可以看出客观归责理论在玩忽职守罪中具有实践可操作性。在风险制造环节，厘清行为人的职责范围，没有职责则不存在渎职行为，符合比例原则的执法行为属于被容许的风险。在风险实现环节，重点判断实现的风险与制造的风险是否统一，这里的统一并不限于形式化判断，还要进行实质性审查，考察两者之间是否具有内在的关联性以及是否存在结果避免可能性。在第三人自杀的场合，区分渎职者与行为人的人身依附性及第三人的自由程度，对于被采取强制措施或者服刑的人，监管人员对其具有人身安全保障的义务。在生命健康权仍属于第三人管辖时，需要进一步考察自杀结果是否超出了玩忽职守罪构成要件的涵摄范围，判断是第三者自杀的异常性还是渎职行为的严重性造成了恶劣的社会影响。
In practice, the crime of negligence of duty has the problems of difficulty in determining and inconsistent judgment standards. In particular, the determination of causality is too controversial. In practice, the mitigation of penalty is often used to avoid the argument of causation. The research on causality in the general theory of criminal law is quite prosperous, but it is insufficiently combined with specific crimes such as dereliction of duty, especially the crime of dereliction of duty. The crime of dereliction of duty itself has the characteristics of indirectness and complexity of causation, the intersection of negligence and omission, and the decentralization of duty setting. At the same time, there are problems of insufficient normative imputation judgment and result-only problems in practice.In the traditional theory of causality, the theory of necessity and contingency, the theory of dangerous realization, the theory of attribution of mitigating results, and the theory of objective imputation are all representative, but the first three theories have shortcomings, and objective imputation The theoretical advantages are more obvious: a higher degree of standardized thinking, which can fit the thinking path of factual attribution and standardized attribution, can be dynamically used in the complex risk society background, and the lower judge rules are more clear. At the same time, the objective imputation theory is also compatible with the crime of dereliction of duty. The core of the theory is that the purpose of legal norm protection is conducive to promoting the judges to explore the causal nature of the crime of dereliction of duty. It also interacts with the fictitious nature of the causality of legal offenses, and is more important. The reason is that the standardized criminal law thinking and methodology brought by it are far greater than the innovation of rules.Combined with actual cases, it can be seen that the objective imputation theory has practical operability in the crime of negligence. In the risk manufacturing process, clarify the scope of responsibility of the perpetrator. If there is no responsibility, there will be no malfeasance. Law enforcement in accordance with the principle of proportionality is a permissible risk. In the risk realization link, the key point is to judge whether the realized risk and the manufactured risk are unified. The unification here is not limited to formal judgments, but also a substantive review to examine whether the two are inherently related and whether there is result avoidance. possibility. In the case of a third person's suicide, the personal dependency of the dereliction and the perpetrator and the degree of freedom of the third person are distinguished. For those who are subjected to compulsory measures or serving a sentence, supervisors have the obligation to protect their personal safety. When the right to life and health is still under the jurisdiction of a third party, it is necessary to further investigate whether the result of suicide exceeds the scope of the elements of the crime of dereliction of duty. The reason for the strong public opinion is the malfeasance of the perpetrator or the surprise of the suicide.
