对有影响力的人行贿罪法律适用问题研究
发布时间：2018-10-05 16:29
【摘要】：随着我国改革开放进程的不断推进,市场主体为了在市场竞争中能够最大化满足自身利益的诉求,采取一些违法手段获得利益。在传统的贪腐类案件中,市场主体多采用的是对国家工作人员直接给予财物或是承诺给予财物的行为方式,我国刑法传统理论规范的也是这种直接行贿行为。然而随着经济的发展和社会中人与人交往的加深,存在国家工作人员身边的人员利用公职人员的影响力而收受他人财物的情况,对于该类行为我国传统刑法未作出规定,这也是我国法律存在漏洞的表现之一。为了更好规范公民的行为,2007年我国出台了《刑法修正案(七)》正式将利用影响力受贿的行为作为犯罪进行处罚,这也是我国逐步完善规范侵犯国家法益的犯罪行为。随着社会关系的变化,近年来贪污案件主体呈现的向国家工作人员身边扩大的趋势,即国家工作人员身边的近亲属或是其他具有密切关系的人,这些主体利用这种影响力为行贿人谋取利益。在《刑法修正案(九)》颁布以前我国刑法没有相应的法律规定规范这种对有影响力的人行贿的行为,这种行为成为法外空间,这样并不能很好保护我国刑法的法益,在一定程度可能助涨该类行为的气焰。为了规范现代社会出现的新型犯罪行为,我国于2015年出台的《刑法修正案(九)》将对有影响力的人行贿行为作为刑法规制的对象。本文采用的传统的分析方法,对该罪规定的构成要件进行分析,梳理目前我国刑法理论中对该罪构成要件中的要素进行分析,明确要素的具体内容,也为《刑法修正案(九)》对该行为的法律适用提供理论的依据。本文首先从对有影响力的人的行为作为刑法规范的意义入手,分析对比域外对该类行为的立法规定和我国对该行为的立法现状,总结域外法律规定对我国的启示。法律是经验的总结,域外国家对该类行为的规定可以成为我国规范该类行为参考,法律是人类智慧的总结,同样我们国家的法律规定也不能闭门造车,借鉴域外的经验可以避免我国法律少走弯路,更好的规范我国社会出现的行为。其次,从对有影响力的人行贿罪的客体、客观、主体、主观四个方面着重分析该罪的构成要件,明确该罪犯罪构成的总体特征,为司法实践提供保障。这是从司法实践的角度入手,使得司法工作者在实践中认定具体的行为能够有清晰的思维,分析行为的违法性和责任性,指导司法实践活动。再次,在司法实践中,通过分析该罪的罪与非罪、此罪与彼罪之间界限、证据认定难点问题,解决司法实践中对该行为如何作为刑法评价对象的问题。最后,从该罪的犯罪形态入手,通过分析该罪的犯罪形态、罪数形态及共犯认定,解决行为人承担什么样的责任问题。
[Abstract]:With the development of China's reform and opening up process, the main body of the market, in order to maximize their own interests in the market competition, take some illegal means to obtain the benefits. In the traditional cases of corruption, the main body of the market mostly uses the behavior of directly giving property or promising to give property to the state functionary, and the traditional theory of criminal law of our country also regulates this kind of direct bribery. However, with the development of economy and the deepening of the communication between people in the society, there exists the situation that the people around the state functionaries take advantage of the influence of the public officials to receive other people's property. There is no provision for this kind of behavior in the traditional criminal law of our country. This is also one of the manifestations of loopholes in our country's laws. In order to better regulate the behavior of citizens, in 2007, our country issued the Criminal Law Amendment (7) to formally punish the bribery of influence as a crime, which is also the gradual improvement of our country to regulate the crime of violating the interests of national law. With the change of social relations, in recent years, the main body of corruption cases has shown a tendency to expand to the side of state functionaries, that is, close relatives of state functionaries or other people with close ties. These subjects use this influence for the benefit of the briber. Before the promulgation of the Criminal Law Amendment (9), China's Criminal Law did not have corresponding legal provisions to regulate this kind of bribery of influential people, and this kind of behavior became an extra-legal space. This would not be able to protect the legal interests of our criminal law very well. To a certain extent, it may help to inflame such behavior. In order to standardize the new criminal behavior in modern society, the Criminal Law Amendment (9) published in 2015 regards bribery of influential people as the object of criminal law regulation. This article adopts the traditional analysis method, carries on the analysis to the constitution element of the crime stipulation, combs our country criminal law theory to carry on the analysis to the element of the crime constitution element at present, clarifies the concrete content of the essential factor. It also provides the theoretical basis for the application of the law of the Criminal Law Amendment (9). This paper begins with the significance of the behavior of the influential person as the norm of criminal law, analyzes and compares the legislative provisions of this kind of behavior outside the country and the current legislative situation of our country, and summarizes the enlightenment of the extraterritorial legal provisions to our country. Law is a summary of experience. The provisions of foreign countries on such acts can be used as a reference for our country to regulate such acts, and laws are a summary of human wisdom. Similarly, the laws and regulations of our country cannot be created behind closed doors. Drawing lessons from the experience of foreign countries, we can avoid the detours of our laws and better regulate the behavior of our society. Secondly, from the object, the objective, the subject, the subjective four aspects of the crime of bribery, focusing on the analysis of the elements of the crime, to clarify the overall characteristics of the crime of crime, to provide protection for judicial practice. This is from the perspective of judicial practice, so that the judicial workers in practice to identify specific acts can have a clear thinking, analysis of the illegality and responsibility of the behavior, guide judicial practice activities. Thirdly, in the judicial practice, through the analysis of the crime and non-crime, the boundary between the crime and the other crime, the difficult problem of evidence identification, solve the problem of how to evaluate the behavior as the object of criminal law in judicial practice. Finally, from the crime of the form of crime, through the analysis of the crime of the form of crime, the number of forms of crime and the identification of accomplices, to solve the problem of what kind of responsibility the perpetrator bears.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392
本文编号：2254077
[Abstract]:With the development of China's reform and opening up process, the main body of the market, in order to maximize their own interests in the market competition, take some illegal means to obtain the benefits. In the traditional cases of corruption, the main body of the market mostly uses the behavior of directly giving property or promising to give property to the state functionary, and the traditional theory of criminal law of our country also regulates this kind of direct bribery. However, with the development of economy and the deepening of the communication between people in the society, there exists the situation that the people around the state functionaries take advantage of the influence of the public officials to receive other people's property. There is no provision for this kind of behavior in the traditional criminal law of our country. This is also one of the manifestations of loopholes in our country's laws. In order to better regulate the behavior of citizens, in 2007, our country issued the Criminal Law Amendment (7) to formally punish the bribery of influence as a crime, which is also the gradual improvement of our country to regulate the crime of violating the interests of national law. With the change of social relations, in recent years, the main body of corruption cases has shown a tendency to expand to the side of state functionaries, that is, close relatives of state functionaries or other people with close ties. These subjects use this influence for the benefit of the briber. Before the promulgation of the Criminal Law Amendment (9), China's Criminal Law did not have corresponding legal provisions to regulate this kind of bribery of influential people, and this kind of behavior became an extra-legal space. This would not be able to protect the legal interests of our criminal law very well. To a certain extent, it may help to inflame such behavior. In order to standardize the new criminal behavior in modern society, the Criminal Law Amendment (9) published in 2015 regards bribery of influential people as the object of criminal law regulation. This article adopts the traditional analysis method, carries on the analysis to the constitution element of the crime stipulation, combs our country criminal law theory to carry on the analysis to the element of the crime constitution element at present, clarifies the concrete content of the essential factor. It also provides the theoretical basis for the application of the law of the Criminal Law Amendment (9). This paper begins with the significance of the behavior of the influential person as the norm of criminal law, analyzes and compares the legislative provisions of this kind of behavior outside the country and the current legislative situation of our country, and summarizes the enlightenment of the extraterritorial legal provisions to our country. Law is a summary of experience. The provisions of foreign countries on such acts can be used as a reference for our country to regulate such acts, and laws are a summary of human wisdom. Similarly, the laws and regulations of our country cannot be created behind closed doors. Drawing lessons from the experience of foreign countries, we can avoid the detours of our laws and better regulate the behavior of our society. Secondly, from the object, the objective, the subject, the subjective four aspects of the crime of bribery, focusing on the analysis of the elements of the crime, to clarify the overall characteristics of the crime of crime, to provide protection for judicial practice. This is from the perspective of judicial practice, so that the judicial workers in practice to identify specific acts can have a clear thinking, analysis of the illegality and responsibility of the behavior, guide judicial practice activities. Thirdly, in the judicial practice, through the analysis of the crime and non-crime, the boundary between the crime and the other crime, the difficult problem of evidence identification, solve the problem of how to evaluate the behavior as the object of criminal law in judicial practice. Finally, from the crime of the form of crime, through the analysis of the crime of the form of crime, the number of forms of crime and the identification of accomplices, to solve the problem of what kind of responsibility the perpetrator bears.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392
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