行贿罪中“不正当利益”的认定研究
发布时间：2018-10-10 17:32
【摘要】：根据刑法第389条的规定，“为谋取不正当利益”是行贿罪的构成要件，“不正当利益”的准确认定对于行贿罪的认定有重要的意义。 “不正当利益”从字面上可理解为不能满足最基本的道德要求或违背了社会规范的利益，在学理上亦存在有“非法利益说”、“违法利益说”、“职务违反说”、“手段不正当说”等诸多学说观点。在实务中，其定义也不断被修改。行贿罪中的“不正当利益”应该包括以下二种类型：一是实体性利益，即违反法律、法规、规章、政策规定的利益；二是程序性利益，即违反法律、法规、规章、政策、行业规范的规定提供帮助或者方便条件。 综合立法规定和我国现阶段的国情，把“为谋取不正当利益”认定为行贿罪的必备构成要件更有利于打击受贿犯罪，，其体现的是行为人主观上意图获取“不正当利益”的目的，属于行贿罪的主观要件，同时它是行为人实施送钱送物行为的内心起因，是行贿人实施行贿犯罪行为的动机。 当前在司法实践中认定“不正当利益”，首先应当选用2013年《最高人民法院、最高人民检察院关于办理行贿刑事案件具体应用法律若干问题的解释》作为判断“不正当利益”的基础，再综合考量行贿人的主观目的，正确认定“不正当利益”。如对于“日常送钱送物进行‘感情投资’行为是否可以认定为行贿”这一问题，可以从送收钱物人双方真实的日常关系状况、行为人的动机、财物给予的针对性和行为后果四个方面来分析；在追缴“不正当利益”的问题上，应审慎控制需要追缴的“不正当利益”范围，对于“不正当财产性利益”应予以追缴或者责令退赔，对“其他不正当利益”应由有关部门依照相关规定予以处理。
[Abstract]:According to the provisions of Article 389 of the Criminal Law, "to seek improper interests" is the constitutive element of the crime of bribery, and the accurate identification of "improper interests" is of great significance to the determination of the crime of bribery. "improper interests" can be understood literally as failing to satisfy the most basic moral requirements or violating the social norms. In theory, there are also "illegal interests", "illegal interests" and "duty violations". "improper means of saying" and many other theoretical points of view. In practice, its definition has been constantly revised. The "improper interests" in the crime of bribery should include the following two types: one is the substantial interests, that is, the interests that violate the laws, regulations, regulations and policies; the other is the procedural interests, that is, the violation of the laws, regulations, rules and policies, The provisions of the industry regulations provide assistance or convenient conditions. According to the comprehensive legislative provisions and the current situation of our country, it is more advantageous to crack down on the crime of bribery by considering "seeking for improper interests" as the necessary constituent elements of the crime of bribery, which embodies the intention of the perpetrator to obtain "improper interests" subjectively. It belongs to the subjective elements of bribery crime, and it is the inner cause of the behavior of giving away money and things, and the motive of bribing people to carry out the crime of bribery. In the current judicial practice, we should first choose the "Supreme people's Court" in 2013 to determine "improper interests." The Supreme people's Procuratorate's explanation on the specific Application of Law in handling Criminal cases of bribery > as the basis for judging "improper interests", and then synthetically considering the subjective purpose of the bribe-givers, correctly recognizing "improper interests". For example, the question of whether the "emotional investment" behavior of "giving money and giving things daily" can be regarded as a bribe, can be derived from the real daily relationship between the two parties, and the motive of the perpetrator. The pertinence of property giving and the consequences of behavior are analyzed, and the scope of "improper interests" that need to be recovered should be carefully controlled on the issue of recovery of "improper interests". "improper property interests" shall be recovered or ordered to be returned and compensated, and "other improper interests" shall be dealt with by relevant departments in accordance with relevant provisions.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.392
[Abstract]:According to the provisions of Article 389 of the Criminal Law, "to seek improper interests" is the constitutive element of the crime of bribery, and the accurate identification of "improper interests" is of great significance to the determination of the crime of bribery. "improper interests" can be understood literally as failing to satisfy the most basic moral requirements or violating the social norms. In theory, there are also "illegal interests", "illegal interests" and "duty violations". "improper means of saying" and many other theoretical points of view. In practice, its definition has been constantly revised. The "improper interests" in the crime of bribery should include the following two types: one is the substantial interests, that is, the interests that violate the laws, regulations, regulations and policies; the other is the procedural interests, that is, the violation of the laws, regulations, rules and policies, The provisions of the industry regulations provide assistance or convenient conditions. According to the comprehensive legislative provisions and the current situation of our country, it is more advantageous to crack down on the crime of bribery by considering "seeking for improper interests" as the necessary constituent elements of the crime of bribery, which embodies the intention of the perpetrator to obtain "improper interests" subjectively. It belongs to the subjective elements of bribery crime, and it is the inner cause of the behavior of giving away money and things, and the motive of bribing people to carry out the crime of bribery. In the current judicial practice, we should first choose the "Supreme people's Court" in 2013 to determine "improper interests." The Supreme people's Procuratorate's explanation on the specific Application of Law in handling Criminal cases of bribery > as the basis for judging "improper interests", and then synthetically considering the subjective purpose of the bribe-givers, correctly recognizing "improper interests". For example, the question of whether the "emotional investment" behavior of "giving money and giving things daily" can be regarded as a bribe, can be derived from the real daily relationship between the two parties, and the motive of the perpetrator. The pertinence of property giving and the consequences of behavior are analyzed, and the scope of "improper interests" that need to be recovered should be carefully controlled on the issue of recovery of "improper interests". "improper property interests" shall be recovered or ordered to be returned and compensated, and "other improper interests" shall be dealt with by relevant departments in accordance with relevant provisions.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.392
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5 赵
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