事后受贿行为之探析

发布时间：2019-06-28 10:08

【摘要】：对于事前无约定的事后受贿行为类型的定性问题,目前在我国还存在法律上的空白。肯定说、否定说以及区分说均有各自的道理,三者形成鼎力之势。肯定说主要从当事人之间事前无约定的利害关系、行为实施者的实行行为侵犯受贿罪法益的紧迫性、受贿罪的本质、行为实施者的主观方面要件这几个角度来论证事前无约定的事后受贿行为成立受贿罪。否定说坚持事前无约定就不成立受贿罪的立场,提出相对立的观点。区分说则认为应当将事后受贿行为分成几种类型去分别评析。在我国当前事后受贿行为大量存在且愈演愈烈的情况下,应严惩此类犯罪行为。事后受贿行为实施者成立受贿罪不应将事前有约定作为前提条件,因为事后受贿行为具有侵犯受贿罪法益的潜在性,具有成立受贿罪的主观故意,符合受贿罪“权钱交易”的本质。而且,探析事后受贿行为与某些近似行为如非国家工作人员受贿行为、滥用职权行为以及行贿行为之间的界限与关系,才能准确辨别它们之间的界限与关系,司法实务中出现的认定困惑就会迎刃而解。
[Abstract]:At present, there is still a legal gap in our country for the qualitative problem of the types of ex post facto bribery without agreement. It is certain that the theory of negation and the theory of distinction have their own reasons, and the three have formed a powerful trend. It is confirmed that the crime of accepting bribes is established from the angles of unagreed interests between the parties, the urgency of the act implementers infringing on the legal interests of the crime of accepting bribes, the essence of the crime of accepting bribes, and the subjective elements of the perpetrators of the acts. The negative theory insists on the position that the crime of accepting bribes will not be established without prior agreement, and puts forward opposite viewpoints. The differentiation theory holds that bribery after the event should be divided into several types to be evaluated separately. In our country, a large number of ex post facto bribery acts exist and become more and more serious, this kind of criminal acts should be severely punished. The establishment of the crime of accepting bribes after the event should not be premised on the prior agreement, because the act of accepting bribes after the event has the potential to infringe on the legal interests of the crime of accepting bribes, and has the subjective intention of establishing the crime of accepting bribes, which accords with the essence of the "transaction of power and money" of the crime of accepting bribes. Moreover, by analyzing the boundary and relationship between bribery and some similar acts, such as bribery of non-state functionaries, abuse of power and bribery, the boundary and relationship between them can be accurately distinguished, and the confusion in judicial practice will be solved.
【学位授予单位】：广西民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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