行贿罪定罪量刑问题研究

发布时间：2018-09-03 07:11

【摘要】：我国对行贿罪一直采取较于受贿罪相对更为宽容的态度,贿赂犯罪的治理成效并不尽如人意。党的十八大以来,党中央对于打击腐败的决心显见一斑,坚如磐石,反腐力度前所未有,严惩贿赂犯罪,特别是要从源头上惩治行贿犯罪。新中国成立后的立法演进便体现了我国目前对行贿罪的刑事政策为过于宽缓转变为宽严相济,着力于提高刑事处罚的力度。《中华人民共和国刑法修正案(九)》正是在反腐这样的时代背景下孕育而生的。在本次修正案中,对反腐败的相关制度规定做了进一步的完善,旨在加大对行贿罪等一系列突出的腐败犯罪的惩罚力度。尽管《刑法修正案(九)》对行贿罪进行了一定程度的修改,但在司法实践中,对行贿罪定罪与量刑的认定仍存在一些问题。笔者基于此提出自己的拙见,以期对我国司法实践尽一点绵薄之力。关于行贿罪的定罪,笔者指出谋取不正当利益是行贿罪的目的,也是其必不可缺的主观构成要件。另外,我们应从相关的理论学说以及立法原意来正确理解不正当利益;行贿罪客观行为的认定,主要是从财物以及行为方式的认定予以介绍;行贿罪的罪与非罪,行贿与人情往来的界限;行贿罪与单位行贿罪的界分以及行贿罪与对非国家工作人员行贿罪的合理界定。对于行贿罪的量刑,行贿罪法定刑幅度的确定标准,包括一般行贿罪、情节严重或使国家利益遭受重大损失、情节特别严重这三档法定刑量刑情节的理解与认定;行贿罪关于适用缓刑和免于刑事处罚的限制性规定与其他不适用缓刑和免予刑事处罚情形这一兜底条款的理解;严格行贿罪从宽处罚规定的特别自首与立功的理解与适用问题。
[Abstract]:In our country, bribery crime has always been more tolerant than bribery crime, and the management effect of bribery crime is not satisfactory. Since the 18th National Congress of the Party, the determination of the Party Central Committee to crack down on corruption has been evident. It is as firm as a rock, and its anti-corruption efforts are unprecedented. It is necessary to severely punish the crime of bribery, especially by punishing the crime of bribery at its source. After the founding of New China, the evolution of legislation reflects that the present criminal policy of bribery crime in our country is too broad and slow to be changed into lenient and strict punishment. The Criminal Law Amendment (9) of the people's Republic of China was conceived under the background of anti-corruption. In this amendment, the anti-corruption system has been further improved to increase the punishment of bribery and a series of prominent corruption crimes. Although the Amendment of Criminal Law (9) has modified the crime of bribery to a certain extent, in judicial practice, there are still some problems in the conviction and sentencing of bribery. Based on this, the author puts forward his own views, in order to do a little bit of judicial practice in our country. With regard to the conviction of bribery, the author points out that seeking improper interests is the purpose of bribery crime, and it is also an indispensable subjective constituent element. In addition, we should correctly understand improper interests from relevant theories and legislative intent; the identification of objective behavior of bribery crime is mainly introduced from the identification of property and behavior mode; the crime of bribery and non-crime, The boundary between bribery and human relations, the division between bribery crime and unit bribery crime, and the reasonable definition between bribery crime and non-state staff bribery crime. For the sentencing of bribery crime, the determination standard of the statutory punishment range of bribery crime, including the general bribery crime, serious circumstances or cause the national interests to suffer heavy losses, especially serious circumstances of the three legal sentencing circumstances understanding and determination; The understanding of the restrictive provisions on the application of probation and exemption from criminal punishment in bribery crime and the other provisions which do not apply suspended sentence and exemption from criminal punishment, and the understanding and application of special voluntary surrender and meritorious service in strict lenient punishment of bribery crime.
【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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