我国性贿赂入刑的法律思考

发布时间：2018-07-15 18:58

【摘要】：近年来,为建设法治国家,我国不断加大惩治腐败行为的力度,而不少高官在持续的反腐工作中,纷纷落马。而近年引起社会较大关注的“刘志军事件”、“雷政富事件”、“葛兰素史克高管事件”中,性贿赂变成权与利益交换的手段与筹码。“性贿赂”一词开始由第一次浮现到重复出现,性贿赂也开始为大众慢慢熟悉与重视。性贿赂作为一种新型贿赂罪的犯罪现象,其社会危害性非常明显。不仅使得国家工作人员职务廉洁性沦丧,国家政府给公众的权威形象也严重受损。在《联合国反腐败公约》中,贿赂罪的范围被定义为包括所有不正当好处。我国虽然加入了该公约,但目前我国刑法就贿赂罪的规制范围仅限于财产,而没有对性贿赂进行明确规制。虽然在2008年出台的司法解释中,对能用金钱量化的那部分性贿赂进行了法律规制。比如,性行贿者一方直接给予受贿者一方一定金钱或者其他财物,而受贿者事后用此部分金钱、财物作为嫖资。但不能用金钱衡量的那部分性贿赂问题,也就是性贿赂入刑的问题,仍然没有有效的解决办法。随着越来越多的国家把贿赂罪的规制范围从财产性利益扩大到非财产性利益,包括性行贿者一方给国家工作人员性服务等不正当好处。不少学者主张我国立法应该符合国际潮流,也有学者对性贿赂入刑大肆反对。性贿赂是否应该被写入刑法,争议较大。持“肯定说”的一些学者认为性贿赂应该入刑,性贿赂的社会危害性并不亚于传统的财产性贿赂犯罪。国家工作人员职务的廉洁性与公正性受侵蚀,社会不正之风大肆蔓延。广大民众对我国国家、政府及法律工作人员也渐渐丧失信任感,严重降低了国家的法律威信。而当前性贿赂入刑中,司法取证难、违反谦抑性原则等理由,不能作为回避“性贿赂”入刑的借口。而持“否定说”的学者则认为,性贿赂方式极其隐蔽,在司法实务上取证量刑比较困难。本文旨在对性贿赂入刑引发的法律思考进行阐述,对性贿赂入刑引发的法律思考进行分析,从而提出司法实务方面,刑罚制度上的可行性合理性方案设计,望借此能解决性贿赂入刑之困境。
[Abstract]:In recent years, in order to build a country ruled by law, our country has continuously strengthened the punishment of corruption, and many senior officials have fallen down in the continuous anti-corruption work. In the "Liu Zhijun incident", "Lei Zhengfu incident" and "GlaxoSmithKline executives incident", sexual bribery has become a means and bargaining chip for the exchange of rights and interests. The word "sexual bribery" began to appear from the first time to repeat, and sexual bribery began to be known and valued by the public. Sexual bribery as a new crime of bribery crime phenomenon, its social harm is very obvious. Not only does it make the state functionaries clean and clean, but also the public authority image of the state government is seriously damaged. In the UN Convention against Corruption, the scope of the bribery offence is defined to cover all undue advantages. Although our country has joined the convention, the scope of the crime of bribery in our criminal law is limited to property at present, and there is no explicit regulation on sexual bribery. Although in the judicial interpretation in 2008, the part of sexual bribery that can be quantified by money is regulated by law. For example, the sex briber directly gives some money or other property to the bribe-taker, and the bribe-taker uses this part of the money as the whoring money afterwards. However, there is still no effective solution to the problem of sexual bribery, which cannot be measured by money. With more and more countries expand the scope of bribery crime from property interests to non-property interests, including sexual bribery party to the national staff sexual services and other improper benefits. Many scholars hold that our legislation should conform to the international trend, and some scholars are strongly opposed to the crime of sexual bribery. Whether sexual bribery should be written into criminal law is controversial. Some scholars believe that sexual bribery should be punished, and the social harm of sexual bribery is no less than that of the traditional crime of property bribery. The incorruptibility and impartiality of state staff are eroded, and social malpractices are rampant. The general public gradually lose their trust in our country, government and legal staff, which seriously reduces the country's legal prestige. However, in the current criminal procedure of sexual bribery, it is difficult to obtain evidence and violate the principle of modesty, so it can not be used as an excuse to evade the punishment of "sexual bribery". However, the scholars who hold the "negative theory" believe that sexual bribery is extremely covert, and it is difficult to obtain evidence and sentence in judicial practice. The purpose of this paper is to expound the legal thinking caused by sexual bribery, to analyze the legal thinking caused by sexual bribery, and to put forward the feasible and reasonable scheme design of criminal penalty system in judicial practice. It is hoped that this will solve the plight of sexual bribery.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392

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