贿赂犯罪中“不正当利益”的认定

发布时间：2018-08-18 19:19

【摘要】：随着反腐进程的不断推进,中国法治面临着严峻的考验,而在反腐过程中,行贿、受贿罪的认定,成为了一个社会焦点。也引发了学界对此罪名的研究热情。对典型行贿案件的分析表明,司法实践中认定行贿罪的关键在于判断行为人所实施的行为是否具有“为谋取不正当利益”的目的。刑法意义上的不正当利益是指称欠缺合法性的利益。考察我国贿赂犯罪中“不正当利益”的立法沿革与含义,我国立法与司法机关对“谋取不正当利益”要件有一个从无到有、从严到宽的立法与司法解释的变化,可以看到我国对该要件的认识不断深刻,其适用的范围也在不断的扩大。因此,本着宽严相济的刑事政策,充分体现谦抑性原则,在司法认定中,首先,应明确“为谋取不正当利益”属于行贿类犯罪的主观要件,“不正当利益”的内容包括非法利益和非法手段利益;其次,“不正当利益”司法认定的依据除刑法规定外,包括四个主要的解释性规范文件。在具体认定时,对行贿人应适用行为时的司法解释,并兼顾从旧兼从轻原则。此外,在行贿人主观目的“含糊不定”或行贿人请托事项不明,如进行“感情投资”等情形,应当以社会普遍认可的、得到大多数人认同和使用的含义作为认定标准,并结合行贿人的主观各方面情况进行判断。最后,“为谋取不正当利益”废除说并不可取,而保持这一主观要件,将更有利于有效打击社会危害性较大的行贿行为。
[Abstract]:With the continuous progress of anti-corruption, the rule of law in China is facing a severe test, and in the anti-corruption process, the recognition of bribery and bribery has become a social focus. Also aroused the academic circles to this charge research enthusiasm. The analysis of typical bribery cases shows that the key to determine the crime of bribery in judicial practice is to judge whether the behavior carried out by the perpetrator has the purpose of "seeking improper interests". Improper interests in the sense of criminal law are the interests alleging lack of legitimacy. By investigating the legislative evolution and meaning of "improper interests" in bribery crimes in China, the legislative and judicial organs of our country have a change in legislation and judicial interpretation of "seeking improper interests" from scratch and from strict to broad. We can see that our understanding of this element is constantly profound, its scope of application is constantly expanding. Therefore, in line with the criminal policy of combining leniency and severe punishment, the principle of modesty and restraint should be fully embodied. In the judicial determination, first of all, it should be made clear that "for seeking improper interests" is a subjective element of bribery crimes. The content of "illegitimate interests" includes illegal interests and illegal means interests; secondly, the basis of judicial cognizance of "illegitimate interests" includes four main explanatory normative documents except the provisions of criminal law. In the concrete confirmation, the judicial interpretation of the behavior should be applied to the briber, and the principle of both the old and the lighter should be taken into account. In addition, in cases where the briber's subjective purpose is "vague and uncertain" or the briber's request for care is not clear, such as "emotional investment", it should be recognized as a standard of determination by the meaning that is generally accepted by the society and recognized and used by the majority of the people. And combined with the bribery of the subjective aspects of the situation to judge. Finally, it is not advisable to abolish the theory of "to seek improper interests", but to maintain this subjective element will be more beneficial to effectively crack down on the socially harmful bribery.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.392

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