浅析贪污受贿犯罪的量刑数额与情节
发布时间：2018-10-19 12:15
【摘要】：党的十八大以来,“全面建成小康社会、全面深化改革、全面依法治国、全面从严治党”成为时代最强音。在重拳反腐的情况下,法律也随着时代的变化不断适应现在社会的要求。《刑法修正案(九)》(以下简称《修九》)对于贪污犯罪的刑罚制度进行了很大的创新,改变了以往以数额为中心的模式,没有对具体数额进行规定,更加偏向情节的天平。我相信这对今后改革的推进是一个良好的基础。随后又颁布了《关于办理贪污贿赂刑事案件适用法律若干问题的解释》(以下简称《解释》),对数额与情节作出了具体的解释。在以往的实践中,数额作为确定量刑档次的最主要指标,存在一些问题,最明显的就是在数额达到十万元以后,犯罪的单位成本不升反降,往往出现贪污几十万与几百万没有任何区别这种不合理的现象。另外,从贪污贿赂犯罪的社会危害性方面来看,其侵害的法益首先是职务行为的不可交易性,其次才是对于公私财产的侵犯,将数额作为最重要的处罚依据显得有些本末倒置。本文对于贪污受贿犯罪数额与情节的现行规定进行了介绍,并且列出了《修九》和《解释》修改的内容及其积极意义,并提出现行规定存在的一些不足,根据不足提出自己的建议。我建议贪污受贿犯罪应提升情节在定罪量刑中的作用,将数额也作为量刑情节的一部分,通过与其他情节相结合来适应不断变化发展的现实社会;不设置起刑点,将犯罪数额与量刑数额合并为犯罪数额,只要有相应的出现犯罪数额,哪怕只有一卷纸,也要规定为犯罪;与防微杜渐式的刑罚起刑点相应的减轻刑罚严厉性,比如采取更具有针对性的身份刑,终身不得进入公务员队伍或者十年内不得提升职务级别等刑罚措施。这种模式对于公权力的合理运用和官员自身的成长都是很有益处的。我相信通过这些变革,一定可以更有效的防治贪腐行为。
[Abstract]:Since the 18th National Congress of the Party, "building a well-off society in an all-round way, deepening reform in an all-round way, governing the country according to law, and administering the Party strictly" have become the strongest tone of the times. In the case of heavy fist anti-corruption, the law has also constantly adapted to the needs of the present society with the changes of the times. The Criminal Law Amendment (9) > (hereinafter referred to as "amending 9") has made great innovations in the criminal penalty system for corruption crimes. Changed the previous model of quantity-centered, no specific amount of provisions, more inclined to the plot balance. I believe this will be a good basis for further reform in the future. After that, the author promulgated the explanation of some problems of applicable Law in handling Criminal cases of Corruption and bribery (hereinafter referred to as "explanation"), and made a concrete explanation of the amount and circumstances. In previous practice, the amount as the most important indicator for determining the level of sentencing, there are some problems. The most obvious problem is that after the amount has reached 100,000 yuan, the unit cost of the crime will not rise but decrease. It is often unreasonable to see that there is no distinction between hundreds of thousands and millions of corruption. In addition, from the point of view of the social harmfulness of the crime of corruption and bribery, the legal interest of its infringement is firstly the non-tradable nature of the duty behavior, and secondly, the infringement of the public and private property, the amount of which is regarded as the most important punishment basis, seems to put the cart before the horse. This paper introduces the current provisions on the amount and circumstances of the crime of corruption and bribery, and lists the contents and positive significance of the amendments to "revision of Nine" and "explanation", and points out some shortcomings of the existing provisions. Make your own suggestions according to your shortcomings. I suggest that the crime of corruption and bribery should enhance the role of the circumstances in the conviction and sentencing, take the amount as part of the circumstances of sentencing, adapt to the changing and developing reality of society by combining with other circumstances, and do not set up penalty points. If the amount of crime and the amount of sentencing are combined into the amount of crime, as long as there is a corresponding amount of crime, even if there is only one roll of paper, it should also be stipulated as a crime. For example, more targeted identity punishment, lifetime not to enter the civil service or 10 years of promotion and other penalties. This model is beneficial to the rational use of public power and the growth of officials themselves. I believe that through these changes, we will be able to prevent corruption more effectively.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392
[Abstract]:Since the 18th National Congress of the Party, "building a well-off society in an all-round way, deepening reform in an all-round way, governing the country according to law, and administering the Party strictly" have become the strongest tone of the times. In the case of heavy fist anti-corruption, the law has also constantly adapted to the needs of the present society with the changes of the times. The Criminal Law Amendment (9) > (hereinafter referred to as "amending 9") has made great innovations in the criminal penalty system for corruption crimes. Changed the previous model of quantity-centered, no specific amount of provisions, more inclined to the plot balance. I believe this will be a good basis for further reform in the future. After that, the author promulgated the explanation of some problems of applicable Law in handling Criminal cases of Corruption and bribery (hereinafter referred to as "explanation"), and made a concrete explanation of the amount and circumstances. In previous practice, the amount as the most important indicator for determining the level of sentencing, there are some problems. The most obvious problem is that after the amount has reached 100,000 yuan, the unit cost of the crime will not rise but decrease. It is often unreasonable to see that there is no distinction between hundreds of thousands and millions of corruption. In addition, from the point of view of the social harmfulness of the crime of corruption and bribery, the legal interest of its infringement is firstly the non-tradable nature of the duty behavior, and secondly, the infringement of the public and private property, the amount of which is regarded as the most important punishment basis, seems to put the cart before the horse. This paper introduces the current provisions on the amount and circumstances of the crime of corruption and bribery, and lists the contents and positive significance of the amendments to "revision of Nine" and "explanation", and points out some shortcomings of the existing provisions. Make your own suggestions according to your shortcomings. I suggest that the crime of corruption and bribery should enhance the role of the circumstances in the conviction and sentencing, take the amount as part of the circumstances of sentencing, adapt to the changing and developing reality of society by combining with other circumstances, and do not set up penalty points. If the amount of crime and the amount of sentencing are combined into the amount of crime, as long as there is a corresponding amount of crime, even if there is only one roll of paper, it should also be stipulated as a crime. For example, more targeted identity punishment, lifetime not to enter the civil service or 10 years of promotion and other penalties. This model is beneficial to the rational use of public power and the growth of officials themselves. I believe that through these changes, we will be able to prevent corruption more effectively.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392
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1 郭国顺,郭欣,军伟;贪污受贿犯罪潜黑数的预测研究[J];中国刑事法杂志;2002年04期
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