Abstract
Italian Parliament is now considering to abolish the crime of abuse of functions. The proposal is based on the low number of conviction verdicts (considered as an effect of the lack of specificity of this criminal case) and on the idea that “anxiety” for criminal responsibility could slow down or paralyze the administrative management. However, moving from the connection between abuse of functions and administrative discretionary power, it is quite evident that the numerous legislative amendments to article 323 c.p. result from a certain tendency to consider discretionary power as a whole, so that it is not possible to escape from the alternative between extending judge’s control on reserved administrative powers or having a rollback of criminal protection. In this framework, the paper aims to highlight how an analytical consideration of discretionary power can reveal a different model, which could assure the compatibility of abuse of functions with some principles of criminal law and represent an alternative to the repeal of art. 323 c.p.

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