受贿罪立法完善问题研究

发布时间：2019-01-03 10:42

【摘要】：受贿罪自建国后的52《条例》到现如今的《刑法修正案(九)》,经历了从无到有、从粗略到细致、从附属于贪污罪到分立的蜕变过程。52《条例》将受贿行为附属于贪污罪,成为贪污罪的表现形式之一;79《刑法》独立出受贿罪,明确了“利用职务上的便利”的构成条件;97《刑法》初步建构了受贿罪的罪状,但是却没有独立的刑罚处罚制度,采用“依照刑”的立法例;《刑法修正案(九)》,细致了受贿罪的成立条件和处罚标准,相对而言完善了定罪量刑环节以及改进了从宽制度。目前,在“宽严相济刑事政策”指导下,受贿罪的立法具有了增设“终身监禁制度”和“罚金刑”这样严的一面;同时也有设置“从宽处罚”规定来体现宽的一面。受贿罪在此次修订后确立了“相对确定数额+情节”的“二元”定罪量刑标准,更加贴切受贿罪本质来进行衡量。在认定和裁量受贿罪过程中,更加注重情节的考量,这样弹性的立法能够给予法官更多自由裁量权,实现个案正义。与此同时,受贿罪的法定刑做出重大调整,显著特点就是将自由刑的刑期幅度拉长,以此来照应“二元”的定罪量刑标准。《刑法修正案(九)》之后完善了受贿罪的立法,概括起来为“实现了刑事法网的严密化”、“增强了定罪量刑的灵活性”和“体现了宽严相济刑事政策”等三个部分。但是,学界争议、实务界棘手的问题依然有未解决的,如受贿罪依然是适用“依照刑”,即刑事处罚要依照贪污罪;再如,法定刑配置上缺乏“立竿见影”的“资格刑”等等。针对受贿罪的时代演变特征和立法缺陷,需要进行立法完善,主要是在罪状内容上将“贿赂”范围扩大到“财产性利益”以及取消“为他人谋取利益”的要件;在法定刑配置上要独立受贿罪的法定刑、废止受贿罪的死刑以及取消受贿罪的终身监禁制度;另外,还要完善从宽处罚制度。《刑法》三百八十五条以及三百八十八条共规定了“索取型受贿”“收受型受贿”“商业受贿”和“斡旋受贿”四种受贿方式,法条囊括性太大不能应对当前多种新型受贿方式,所以需要适当借鉴国外立法模式。司法上的困境囿于立法的缺陷,尽管《刑法修正案(九)》对受贿罪做出了巨大修缮,但是沉积多年的“诟病”尚未解决,接下来的完善方向主要是从以上几方面着手,逐步开展。
[Abstract]:Since the founding of the people's Republic of China, the crime of accepting bribes has gone through a process of transformation from scratch to meticulous, from being attached to the crime of corruption to separation. 52 (regulations) subordinate the act of bribery to the crime of corruption. To become one of the manifestations of corruption crime; 79 the Criminal Law has made the crime of accepting bribes independently, and the constitution conditions of "making use of the convenience of duty" have been made clear, 97 the criminal law has preliminarily constructed the charge of the crime of accepting bribes, but there is no independent system of punishment and punishment, and the legislative example of "according to punishment" is adopted. The amendment of the Criminal Law (9) details the conditions for the establishment of the crime of accepting bribes and the standard of punishment, and comparatively improves the link of conviction and sentencing and the system of leniency. At present, under the guidance of the criminal policy of "combining leniency and severity with punishment", the legislation of the crime of accepting bribes has such a severe side as to add "life imprisonment system" and "fine penalty", and at the same time, it also has the stipulation of "lenient punishment" to reflect the lenient side. After this revision, the crime of accepting bribes has established the standard of "dualistic" conviction and sentencing of "relative fixed amount circumstances", which is more appropriate to measure the nature of the crime of accepting bribes. In the process of cognizance and discretion of bribery, more attention is paid to the consideration of circumstances, so that flexible legislation can give judges more discretion and realize case justice. At the same time, the statutory punishment for the crime of accepting bribes has made a major readjustment. The remarkable feature is that the range of sentences for free punishment is lengthened to take care of the "dual" standard of conviction and sentencing. After the amendment of the Criminal Law (9), the legislation on the crime of accepting bribes has been improved. To sum up, there are three parts: "realizing the rigour of criminal law net", "enhancing the flexibility of conviction and sentencing" and "embodying the criminal policy of combining leniency and severity". However, there are still some unresolved problems in the academic circle, such as the crime of accepting bribes is still applicable to "according to punishment", that is, the criminal punishment should be in accordance with the crime of corruption, and for example, the allocation of statutory punishment lacks the "qualification penalty" which has "immediate effect" and so on. In view of the characteristics of the times evolution and the legislative defects of the crime of accepting bribes, it is necessary to perfect the legislation, mainly to expand the scope of "bribery" to "property interests" and to cancel the elements of "seeking benefits for others" in the content of the crime. In the arrangement of statutory punishment, the statutory punishment of bribery crime should be independent, the death penalty of bribery crime should be abolished, and the life imprisonment system of bribery crime should be abolished. In addition, the system of lenient punishment should be improved. Articles 385 and 388 of the Criminal Law provide for four forms of bribery, namely, "soliciting bribery", "accepting bribery of a type", "taking a commercial bribe" and "taking bribes through mediation." The law is too broad to deal with many new forms of bribery, so it is necessary to draw on foreign legislative models. The dilemma in the administration of justice is limited to the defects of the legislation. Although the Criminal Law Amendment (9) has made a huge repair to the crime of accepting bribes, but the "criticism" that has been deposited for many years has not been resolved, the next improvement direction is mainly from the above several aspects. Step by step.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.392

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