巨额财产来源不明罪司法适用研究
发布时间：2018-12-15 08:17
【摘要】：新世纪新阶段,我国改革开放取得了重大成果,经济社会发展水平取得了重大提升,人民生活质量取得了重大提高。与此同时,腐败问题在我国的政治生活和人民群众的社会生活中日益凸显,并有不断蔓延趋势。反腐败自然也成为我国党和政府的一项十分重要的历史使命。为了展示惩治腐败的决心,我国立法机关在饱受争议中权衡利弊创设了巨额财产来源不明罪。不能否认,巨额财产来源不明罪入刑近三十年来,大量非法拥有巨额财产而检察机关却无法查证属实试图逃避法律制裁的腐败分子被绳之以法。然而,在司法实践中,本罪的角色定位更多的是贪污罪和受贿罪的替代性罪名,实现的只是它的工具价值。与此同时,我们更加清晰地认识到该罪在司法适用过程中仍然存在很多的争议,辅之相应的配套制度更是当务之急,这一切都值得我们深入研究。 全文除了引言和结论外,共分为三个部分： 本文第一部分首先分析了巨额财产来源不明罪的立法沿革,通过详细介绍1988年《补充规定》、1997年《刑法》和2009年《刑法修正案(七)》三个法律文件的内容,熟悉了本罪的历史发展过程,紧接着从正反两方面深入阐述了本罪的立法价值,全面分析了肯定说和否定说的观点和理由,最后提出了笔者对本罪的观点和理由。 本文第二部分对本罪在司法适用中较有争议的犯罪主体(离职的国家工作人员是否可以构成本罪犯罪主体)、证明责任(控方承担说、证明责任倒置说、共同承担说和辩护权说的理论争议)、共同犯罪(肯定说和否定说的理论争议)、犯罪形态(本罪的既遂形态和停止形态)、自首问题(肯定说和否定说的理论争议)等基本问题进行了较为详细的研究分析和深层次的理论探讨,并在司法适用中提出了笔者独立的观点和理由。 本文第三部分认为仅仅依靠巨额财产来源不明罪入刑不能彻底掌握国家工作人员的财产状况,更不能彻底惩治腐败分子,应当在借鉴国外经验的基础上,结合我国实际情况,建立完善的财产申报制度作为配套制度,充分实现巨额财产来源不明罪的独立价值。希望本文的研究成果能够在司法适用中得到认可,能够在法治反腐的道路上起到 一定的推动作用。
[Abstract]:In the new century and new stage, great achievements have been made in China's reform and opening up, the level of economic and social development has been greatly improved, and the quality of life of the people has been greatly improved. At the same time, the problem of corruption is increasingly prominent in our country's political life and people's social life, and has a tendency of spreading. Anti-corruption has naturally become a very important historical mission of our party and government. In order to show the determination to punish corruption, the legislature of our country has created the crime of huge amount of property from unknown sources. It cannot be denied that in the past 30 years since the criminal conviction for the crime of huge amounts of property of unknown origin, a large number of corrupt elements who illegally owned huge amounts of property but could not be verified by the procuratorial organs were brought to justice for trying to evade legal sanctions. However, in judicial practice, the role of this crime is more the crime of corruption and bribery of the alternative charges, only to achieve its instrumental value. At the same time, we recognize more clearly that the crime in the process of judicial application still exists a lot of controversy, supplemented by the corresponding supporting system is the top priority, all of which are worthy of our in-depth study. In addition to the introduction and conclusion, the full text is divided into three parts: the first part of this paper first analyzes the legislative evolution of the crime of huge amounts of property from unknown sources, through a detailed introduction to the 1988 Supplementary provisions, The contents of the three legal documents, 1997 Criminal Law and 2009 Criminal Law Amendment (7), are familiar with the historical development process of this crime, and then the legislative value of the crime is expounded from both positive and negative aspects. This paper analyzes the views and reasons of affirmation and negation, and finally puts forward the author's views and reasons for this crime. The second part of this article is about the subject of the crime in the application of justice (whether the departing national staff can constitute the subject of the crime), the burden of proof (the prosecution bears the theory, the burden of proof is reversed). The theory of co-responsibility and the theory of the right to defense), the theory of joint crime (the theoretical dispute between positive and negative), the form of crime (the completed form of the crime and the form of cessation), In this paper, the author makes a detailed study and analysis of the basic problems such as surrender (the theoretical dispute between affirmation and negation), and puts forward the author's independent viewpoints and reasons in the judicial application. In the third part of this paper, the author thinks that only relying on the crime of huge amount of property of unknown origin can not thoroughly grasp the property situation of the state functionary, let alone punish the corrupt elements thoroughly, should draw lessons from the experience of foreign countries, combined with the actual situation of our country. The establishment of a perfect property declaration system as a supporting system to fully realize the independent value of the crime of huge property of unknown origin. I hope the research results of this paper can be recognized in the judicial application, and can play a role in promoting the rule of law anti-corruption road.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.392
本文编号：2380325
[Abstract]:In the new century and new stage, great achievements have been made in China's reform and opening up, the level of economic and social development has been greatly improved, and the quality of life of the people has been greatly improved. At the same time, the problem of corruption is increasingly prominent in our country's political life and people's social life, and has a tendency of spreading. Anti-corruption has naturally become a very important historical mission of our party and government. In order to show the determination to punish corruption, the legislature of our country has created the crime of huge amount of property from unknown sources. It cannot be denied that in the past 30 years since the criminal conviction for the crime of huge amounts of property of unknown origin, a large number of corrupt elements who illegally owned huge amounts of property but could not be verified by the procuratorial organs were brought to justice for trying to evade legal sanctions. However, in judicial practice, the role of this crime is more the crime of corruption and bribery of the alternative charges, only to achieve its instrumental value. At the same time, we recognize more clearly that the crime in the process of judicial application still exists a lot of controversy, supplemented by the corresponding supporting system is the top priority, all of which are worthy of our in-depth study. In addition to the introduction and conclusion, the full text is divided into three parts: the first part of this paper first analyzes the legislative evolution of the crime of huge amounts of property from unknown sources, through a detailed introduction to the 1988 Supplementary provisions, The contents of the three legal documents, 1997 Criminal Law and 2009 Criminal Law Amendment (7), are familiar with the historical development process of this crime, and then the legislative value of the crime is expounded from both positive and negative aspects. This paper analyzes the views and reasons of affirmation and negation, and finally puts forward the author's views and reasons for this crime. The second part of this article is about the subject of the crime in the application of justice (whether the departing national staff can constitute the subject of the crime), the burden of proof (the prosecution bears the theory, the burden of proof is reversed). The theory of co-responsibility and the theory of the right to defense), the theory of joint crime (the theoretical dispute between positive and negative), the form of crime (the completed form of the crime and the form of cessation), In this paper, the author makes a detailed study and analysis of the basic problems such as surrender (the theoretical dispute between affirmation and negation), and puts forward the author's independent viewpoints and reasons in the judicial application. In the third part of this paper, the author thinks that only relying on the crime of huge amount of property of unknown origin can not thoroughly grasp the property situation of the state functionary, let alone punish the corrupt elements thoroughly, should draw lessons from the experience of foreign countries, combined with the actual situation of our country. The establishment of a perfect property declaration system as a supporting system to fully realize the independent value of the crime of huge property of unknown origin. I hope the research results of this paper can be recognized in the judicial application, and can play a role in promoting the rule of law anti-corruption road.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.392
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