“假借型”受贿犯罪的认定

发布时间：2018-11-13 12:11

【摘要】：受贿犯罪是一直以来为世界各国所困扰的重大社会问题之一,近年来其发案率持续升高,带来了许多问题,而与之相对应的该类犯罪分子却在不断增强自我保护和相应的法律规避意识,他们凭借多年来斗智斗勇司法机关的经验,反侦查能力逐步提高。传统的贿赂犯罪属于简单直接的一对一模式,表现为直接、明显的特点,较为容易被司法机关查处。因此,在直接明显的犯罪手段之下的犯罪分子承受着司法机关的高压严惩。为突破这一局面,逃避法律制裁,他们开始改变犯罪模式,转为能躲避侦查的更为隐蔽、更具迷惑性的犯罪手法。随之而来的就是很多新型的受贿犯罪,行为人假以借贷、借用等名义索取或者收受他人财物,为其谋利就包括在内。对司法实践中频发的假借其他名义,行受贿之实的新型受贿犯罪,将之统称为““假借型”受贿”。“假借型”受贿是随着贿赂犯罪分子不断创新犯罪手法的一种新型受贿犯罪,与一般受贿罪并无实质上的区别,只是假借了其他行为的名义而已。“假借型”受贿犯罪作为一种新型犯罪,由于我国尚缺乏对这一类型的受贿犯罪完整细致的法律规定,导致在司法上这一新型受贿犯罪仍处于难以认定的状态。由于法律规制不完整、新型犯罪表现形式多样且具有隐蔽性强追诉难的特点，国家司法机关对该类案件缺乏系统的应对措施。在相关法律规定空白,受贿形式又不断翻新、受贿手段越来越隐蔽复杂的今天,如何运用好现有的法律对“假借型”受贿犯罪进行规制是一个值得探讨的问题。本文将“假借型”受贿犯罪区分为借款型受贿、借用型受贿以及贷款收息型受贿对其在实践中的认定进行分析,对出现的如何区分民事借款、借用、借贷与受贿行为、“借款”用途对影响受贿数额的影响、受贿后反向提供借款能否折抵数额、以尚未过户借口否认受贿是否成立以及高额利息的确定等问题进行探究分析,尝试着提出问题的解决方案。反腐斗争关系着国家、民族的兴衰存亡,“假借型”受贿犯罪只是新型受贿犯罪的一种,对新型受贿犯罪的研究仍然是任重而道远。
[Abstract]:The crime of bribery is one of the major social problems that have been beset by various countries all over the world. In recent years, the incidence rate of bribery has been continuously rising, which has brought many problems. The corresponding criminals are constantly strengthening their self-protection and the corresponding awareness of law evasion, they rely on years of experience, the ability of counter-investigation gradually improved. The traditional bribery crime belongs to the simple and direct one-to-one mode, which is characterized by its direct and obvious characteristics and is easy to be investigated by the judiciary. Therefore, the criminals under the direct and obvious means of crime bear the high pressure and severe punishment of the judicial organs. In order to break through this situation and evade legal sanction, they began to change the pattern of crime and turn it into a more covert and more puzzling way of crime. The following is a lot of new bribery crime, the actor takes or accepts other people's property in the name of borrowing, etc. In judicial practice, the new crime of accepting bribes in the name of "false loan" is called "false loan". "false loan" bribery is a new type of bribery crime with the bribery criminals constantly innovating their criminal methods. There is no substantial difference between the bribery crime and the general bribery crime, but only in the name of other acts. As a new type of crime, the crime of "false loan" bribery is still in a state of difficulty in judicature because of the lack of complete and meticulous legal provisions on this type of bribery crime in our country. Because the legal regulation is not complete, the new type of crime displays various forms and has the characteristics of hidden strong prosecution, the national judicial organs lack systematic measures to deal with this kind of cases. As the relevant laws and regulations are blank, the form of bribery is constantly renovating, and the means of accepting bribes are becoming more and more complicated, how to make good use of the existing laws to regulate the crime of "false loan" bribery is a problem worth discussing. In this paper, the crime of "false loan" bribery is divided into loan type bribery, loan type bribery and loan type bribery in practice, and how to distinguish between civil borrowing, borrowing and bribery is analyzed in this paper. The influence of the use of "loan" on the amount of bribery, whether the reverse loan can be deducted from the amount of bribery, the question of whether the bribery is established or not and the determination of the high interest rate on the pretext of not yet transferring the ownership of the loan are explored and analyzed. Try to come up with a solution to the problem. The fight against corruption is related to the rise and fall of the country and the nation. The crime of taking bribes under false pretences is only one kind of the new crime of bribery, and the study of the crime of new type of bribery is still a long way to go.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392

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