论受贿罪定量要素的“嵌入式结构”
发布时间：2018-08-31 20:01
【摘要】：就《贪污贿赂解释》,理论与实务已习惯性地称确立了受贿罪"数额+情节"的结构。然而,因疏于对数额与情节各自功能、各自定位及结合方式等的研究,导致这一结构无法有效发挥法条释读功能。在纯数额型中数额可被抹平处理之外,有标志性的意义是,该司法解释确立了数额与情节结合的"嵌入式结构"。这一结构中的情节被同一化、均等化看待,于三档法定刑幅度共用。然八种情节之所以可和特定的弹性数额区间结合来表达情节较重、严重和特别严重,关键是它们有不同"质"或处于不同"体"中。此结构隐含的原理,有助于合理确定"遭受损失"、"多次索贿"等的含义,有助于解决情节竞合等问题。当然,该结构在范围上是受限的,判处无期徒刑等案件不宜适用。
[Abstract]:With regard to the explanation of Corruption and bribery, the theory and practice have habitually established the structure of the "amount plot" of the crime of accepting bribes. However, due to the lack of research on the function of amount and plot, their respective positioning and combination, this structure can not effectively play the function of interpretation of the rule of law. Apart from the fact that the amount can be equalized in the pure amount type, it is significant that the judicial interpretation establishes an "embedded structure" which combines the amount with the plot. The plot in this structure is identical and equalized and shared in the legal range of three files. However, the eight circumstances can be combined with the specific elastic amount interval to express the serious and especially serious circumstances, the key is that they have different "quality" or in different "body". The implicit principle of this structure is helpful to determine the meaning of "suffered losses" and "multiple requests for bribes", and to solve the problem of competing circumstances. Of course, the structure is limited in scope, life imprisonment and other cases are not applicable.
【作者单位】： 西南林业大学文法学院;
【分类号】：D924.3
，
本文编号：2216014
[Abstract]:With regard to the explanation of Corruption and bribery, the theory and practice have habitually established the structure of the "amount plot" of the crime of accepting bribes. However, due to the lack of research on the function of amount and plot, their respective positioning and combination, this structure can not effectively play the function of interpretation of the rule of law. Apart from the fact that the amount can be equalized in the pure amount type, it is significant that the judicial interpretation establishes an "embedded structure" which combines the amount with the plot. The plot in this structure is identical and equalized and shared in the legal range of three files. However, the eight circumstances can be combined with the specific elastic amount interval to express the serious and especially serious circumstances, the key is that they have different "quality" or in different "body". The implicit principle of this structure is helpful to determine the meaning of "suffered losses" and "multiple requests for bribes", and to solve the problem of competing circumstances. Of course, the structure is limited in scope, life imprisonment and other cases are not applicable.
【作者单位】： 西南林业大学文法学院;
【分类号】：D924.3
，
本文编号：2216014
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