论我国职务犯罪的预防

发布时间：2018-08-07 18:28

【摘要】： 自人类有公共权力以来,权力异化而至腐败就是一种反复出现并难以根治的社会现象,作为腐败的主要或说极端表现形式——职务犯罪,其严重腐蚀政治清明,破坏经济发展,损害公平正义,毒化社会风气。职务犯罪贯穿了社会发展的历史,一直是世界各国惩治和防范的重点对象,也是困扰着中国改革发展和现代化进程的一个突出问题,如何有效地预防职务犯罪,建设公正、廉洁、高效的国家机关,是一个重大课题。我国学界尤其是刑法学界,对职务犯罪的研究成果颇丰,能够形成共识的是:职务犯罪的危害巨大,有其政治、经济、法制、文化方面的综合罪因,职务犯罪应重在预防,预防和惩治职务犯罪应采取综合措施。但是,存在的问题有两点:一是在职务犯罪的界定上,仍存在争议,对职务犯罪的主体和行为性质认识不一。二是针对司法实践中“重打击、轻预防"的现状,学界呼吁应加强职务犯罪的预防,但在措施建议方面有两种倾向:一种是过于宏观和笼统,如主张改革,完善机制,但未指明改革的切入点和可行途径;主张加强思想建设、作风建设和文化建设等,但这需要长期积累,如无具体措施和制度保障,只能流于理论,不能切实指导实践。另一种是没有与时俱进,没有把握近期尤其是近一年多来,在政治体制改革、经济发展、法制建设方面的新形势、新成果和新动向,使得措施建议的针对性和实效性不足。在深入研究我国职务犯罪的现状和理论成果的基础上,本文注重实证研究、比较研究和系统研究的方法,紧密结合我国改革发展形势,立足司法实践和立法前沿,分析问题和提出建议力求明确、讲求实效。本文的主要观点是:职务犯罪的预防广义上包括事前预防和事后惩治,惩治职务犯罪的最终目的是预防职务犯罪的发生;职务犯罪的实质是公权私用、公权滥用,是违背了职责要求,是对公共职权的侵害和亵渎,界定职务犯罪应从行为本质入手;职务犯罪有其复杂而多面的成因,权力配置和运行缺乏有效的制约和监督、法制疏漏尤其是刑法规定不严密、司法不严惩处不力、个人道德失控是其主要原因;预防职务犯罪必须坚持立足实践,标本兼治、综合治理,通过深化改革、健全机制、加强监督、完善法制、强化教育等措施,形成预防职务犯罪的综合体系和长效机制;本文提出的体制改革建议、加强预防职务犯罪的专门立法和完善刑罚体系的立法建议,是本文的创新所在。笔者以本文总结自己的研究成果,以期能为预防职务犯罪工作尽一份薄力。
[Abstract]:Since human beings have had public power, power alienation to corruption is a kind of social phenomenon that appears repeatedly and is difficult to cure. As the main or extreme manifestation of corruption-duty crime, it seriously corrodes political clarity and undermines economic development. Impair fairness and justice and poison social ethos. Job-related crimes have run through the history of social development, have been the focus of punishment and prevention in various countries in the world, and are also a prominent problem puzzling the process of reform, development and modernization in China. How to effectively prevent job-related crimes and build justice, Clean, efficient state organs, is a major issue. In our country, especially in the field of criminal law, there are many achievements in the research of job-related crime, which can form a consensus: the harm of job-related crime is enormous, there are comprehensive causes of political, economic, legal and cultural crimes, and the prevention of job-related crimes should be emphasized. Comprehensive measures should be taken to prevent and punish job-related crimes. However, there are two problems: one is that there are still disputes on the definition of duty crime, and different understanding of the subject and nature of duty crime. Second, in view of the current situation of "heavy strike, light prevention" in judicial practice, academic circles call for strengthening the prevention of job-related crimes, but there are two tendencies in the suggestion of measures: one is too macro and general, such as advocating reform and perfecting the mechanism. But it does not point out the breakthrough point and feasible way of reform, and advocates to strengthen ideological construction, style construction and cultural construction, but this needs long-term accumulation. If there is no concrete measures and system guarantee, it can only flow in theory and can not guide practice. The other is the failure to keep pace with the times and to grasp the new situation, new achievements and new trends in the political system reform, economic development, and legal system construction in the near future, especially in the past year or so, which makes the proposed measures insufficient in pertinence and effectiveness. On the basis of in-depth study of the present situation and theoretical achievements of job-related crime in China, this paper focuses on empirical research, comparative research and systematic research methods, closely combines the situation of reform and development of our country, and stands at the forefront of judicial practice and legislation. Analyze problems and put forward suggestions to be clear and practical. The main points of this paper are as follows: the prevention of job-related crimes in a broad sense includes prevention in advance and punishment afterwards, the ultimate purpose of punishing job-related crimes is to prevent the occurrence of job-related crimes, and the essence of job-related crimes is the private use of public rights and abuse of public rights. It violates the requirements of duty, infringes and blasphemes the public power, and defines the crime of duty from the nature of the act; the crime of duty has its complex and multi-sided causes, and the allocation and operation of power lacks effective restriction and supervision. Legal omissions, especially the lack of strict provisions of the criminal law, inadequate administration of justice and inadequate punishment, and lack of control of personal morality are the main reasons for this; the prevention of job-related crimes must be based on practice, deal with both the root and the root causes, deal with the problem comprehensively, and improve the mechanism through deepening reform. Strengthen supervision, perfect legal system, strengthen education and other measures, form comprehensive system and long-effect mechanism of preventing job-related crimes, put forward the suggestions of system reform, strengthen special legislation for preventing job-related crimes and perfect the legislative proposals of penalty system, Is the innovation of this article. The author summarizes his research results in order to make a contribution to the prevention of job-related crimes.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D917.6

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