受贿罪定罪处罚标准研究

发布时间：2018-04-30 14:05

本文选题：受贿罪 + 定罪处罚标准　；参考：《河北大学》2017年硕士论文

【摘要】：新中国成立至1979年《刑法》施行前,我国对受贿罪采取了“计赃论罪”的处罚标准,且依附于贪污罪;1979年《刑法》施行后至1997年《刑法》施行前,对受贿罪采取了“以情节为中心”的处罚标准,且具有独立性;1997年《刑法》施行以来,对受贿罪采取的是“以数额为中心,兼顾情节”的处罚标准,且依附于贪污罪;2015年颁布的《刑法修正案(九)》将其修改为“概括数额+情节”的处罚标准,但依然依附于贪污罪。从我国受贿罪定罪处罚标准的立法演进来看,不仅受贿数额是受贿罪处罚的必要条件,而且依附于贪污罪,与此同时实现了由一元标准向二元标准的转变。我国现行受贿罪的定罪处罚标准存在诸多问题。首先,规定受贿罪与贪污罪共用一个定罪处罚标准,不仅难以反映受贿罪不同于贪污罪的罪质,突显受贿罪处罚中情节的作用,正确认识受贿罪的社会危害性,而且不能充分体现罪刑相适应原则,同时加大了犯罪侦查的难度。其次,规定“以数额为基础”的定罪处罚标准不但无法全面反映受贿罪的危害结果,而且无法规制受贿非财产性利益的情形,同时无法准确把握数额与其他情节的关系。最后,把受贿罪的定罪处罚标准限定于“数额+情节”并依附于贪污罪,不仅不利于刑法目的和严惩腐败目标的实现,而且不利于预防犯罪的刑罚目的的实现和刑罚教育功能的发挥。当前,关于如何完善受贿罪的定罪处罚标准,在理论上主要存在“数额与情节并重”说、“以情节为中心”说、和“以数额为中心,兼顾其他情节”说三种学说。“数额与情节并重”说比较符合实际,但无法将接受或索取非财产性利益的行为纳入调整范围;“以情节为中心”说过于激进,因而不可取;“以数额为中心,兼顾其他情节”说不仅不利于刑法立法理念的更新,也不利于反腐败目的的现实。通过考察域外刑法对受贿罪的规定不难发现,受贿罪的定罪处罚标准不仅独立于贪污罪,而且具有多样性和较强的综合性。以域外受贿罪定罪处罚标准为参照,从我国严惩受贿罪的刑事政策立场来看,我国刑法应当扩大受贿对象的范围,设立独立的定罪处罚标准和法定刑,完善“数额与情节并重”的二元弹性定罪处罚标准,调整受贿数额。
[Abstract]:From the founding of New China to the implementation of the Criminal Law in 1979, China adopted the penalty standard of "counting on stolen goods" for the crime of accepting bribes, and attached to the crime of corruption, after the implementation of the Criminal Law in 1979 to before the implementation of the Criminal Law in 1997. The crime of accepting bribes has adopted the penalty standard of "taking the circumstances as the center" and has its independence. Since the implementation of the Criminal Law in 1997, the penalty standard for the crime of accepting bribes has been "taking the amount as the center and taking the circumstances into account". The amendment (9) of the Criminal Law promulgated in 2015 modifies it as the penalty standard of "summary amount circumstances", but it is still attached to the crime of corruption. From the legislative evolution of the standard of conviction and punishment for bribery in China, not only the amount of bribery is the necessary condition for punishment of bribery, but also depends on the crime of corruption. At the same time, it realizes the transformation from unitary standard to dualistic standard. There are many problems in the standard of conviction and punishment of bribery crime in our country. First of all, it is not only difficult to reflect the quality of bribery crime different from corruption crime, but also to highlight the role of circumstances in the punishment of bribery crime, and to correctly understand the social harmfulness of bribery crime by stipulating that bribery crime and corruption crime share the same standard of conviction and punishment. And can not fully reflect the principle of adaptation of crime and punishment, at the same time increased the difficulty of criminal investigation. Secondly, the standard of conviction and punishment based on amount can not only not fully reflect the harmful results of bribery, but also can not regulate the situation of non-property interests of bribery, and can not accurately grasp the relationship between the amount and other circumstances. Finally, limiting the standard of conviction and punishment of bribery to "amount circumstances" and attaching to the crime of corruption is not only unfavorable to the realization of the goal of criminal law and severe punishment of corruption. Moreover, it is unfavorable to the realization of penalty purpose and the exertion of penalty education function. At present, there are three theories on how to perfect the standard of conviction and punishment for the crime of accepting bribes: "the amount is equal to the circumstances", "taking the circumstances as the center", and "taking the amount as the center, giving consideration to other circumstances". The theory of "equal amount and circumstances" is more realistic, but it is not possible to include in the scope of the adjustment the acceptance or solicitation of non-property interests; the notion of "circumstance as the centre" is too radical to be desirable; and "the amount is the centre", Taking other circumstances into consideration is not only unfavorable to the renewal of criminal law legislation concept, but also to the reality of anti-corruption purpose. It is not difficult to find that the standard of conviction and punishment of bribery crime is not only independent from the crime of corruption, but also has diversity and strong comprehensiveness. Taking the standard of conviction and punishment for crime of accepting bribes as a reference, from the standpoint of our criminal policy of severely punishing the crime of accepting bribes, the criminal law of our country should expand the scope of the object of bribery and establish an independent standard of conviction and punishment and legal punishment. To perfect the dual flexible standard of conviction and punishment and adjust the amount of bribery.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392

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