“感情投资”型受贿问题研究

发布时间：2018-08-07 09:44

【摘要】：“感情投资”型受贿,以人情往来为名,行受贿犯罪之实。频发多见的该类型受贿行为的刑法规制面临立法上的障碍和司法上的困局,不仅是民众茶余饭后的谈资,也是司法工作者案头的挑战,更是理论研讨的热点。本文分为三章,其思路大体如述:首先确定“感情投资”型受贿之内涵,并通过检讨现行立法的有关规定、考察司法实践的具体做法,提出本文的问题意识;就所发现的问题,检索并分析理论界所提出的解决方案和诸种学说,在此基础上对各家主张进行有针对性的批判性思考;最后立足于现行刑法规定和中国现实,借鉴已有理论研究成果和司法实践经验,提出解决问题的方案。第一章是破题之章。本章开篇首先界定了“感情投资”型受贿的内涵,并简述了其与相近概念的关系;随后从刑事政策、比较法、刑法国际化的角度论证了“感情投资”型受贿刑法规制的必要性。本章第二节通过考察现行立法规定,发现“感情投资”型受贿的治理,存在立法供应不足的问题,尤其是“利用职务上的便利”与“为他人谋取利益”的要件均在一定程度上对该类受贿问题的刑法规制设置了障碍;通过对司法实践具体做法的分析,发现实践中该类型受贿的司法定性不一、对价关系判断方法不尽科学、合理等问题。第二章集中探讨、分析了学界就上述问题所提出的应对方案。对于立法上存在的障碍,有基于修正立法的立场,主张增加新罪名、修改受贿罪构成要件的观点;也有基于法解释学的立场主张重新阐释受贿罪的构成要件和贪污罪的构成要件的观点,由此形成受贿罪一元定罪说、贪污罪一元定罪说以及“贪污罪+受贿罪”的二元定罪说。但是走立法修正道路的主张在论理与可能的后果方面均存在诸多缺陷,不宜采纳;法解释学道路的选择虽整体上具有合理性,但其中贪污罪一元定罪说与“贪污+受贿”二元定罪说存在根本性缺陷,值得商榷;而受贿罪一元定罪说则有待深化、完善。关于司法实践中对价关系的判断方法,现有几种典型观点在判断要素与判断标准上也存在一定的弊病,且论述不够深入,结论性过强。所以,较为现实的解决方案是立足现行刑法规定,从法解释学的角度阐明受贿罪要件之内涵,探索对价关系认定的科学方法。第三章在前两章的基础上,着力摸索“感情投资”型受贿刑法规制所面临的问题之解决方略。本章伊始,以受贿罪的保护法益——职务行为的不可收买性——为指引,对“利用职务上的便利”与“为他人谋取利益”的内涵与功能定位作了进一步阐述。前者的范围确定以实际职权说为妥当,且其核心要素是权力性影响;后者宜采取新客观要件说,其内容以许诺说为适切,“感情投资型”受贿中应依照司法解释所确立的推定规则对“为他人谋取利益”要件加以认定。该二要件均系受贿罪的客观要件,共同承担着说明收受型受贿罪中对价关系的任务;前者可置换为“凭借职务上的便利”,旨在从一般意义上说明财物是职务行为的不正当报酬,但仅凭此要件尚不能确证对价关系存在;后者意在进一步强调对价关系只能发生于财物与特定职务行为之间,具有补强对价关系认定之功能。本章第三节首先明确了受贿罪中对价关系判断的一般原理,其内容主要包括八项判断要素与社会相当性的判断标准两个方面;紧随其后,根据受贿罪的具体规定,将有关的参考要素解构、分流至“利用职务上的便利”与“为他人谋取利益”两个要件中,以社会相当性为标准具体认定对价关系之存否。“利用职务上的便利”的判断应分为正向和反向两个步骤进行,以求证对价关系存在之可能性;“为他人谋取利益”的认定,应集中于对推定的基础事实“可能影响职权行使的”判断上,综合诸参考要素确证推定事实之存在。唯有将“利用职务上的便利”与“为他人谋取利益”两个要件结合起来方能较为准确地认定“感情投资”型受贿中的对价关系。
[Abstract]:The "emotional investment" type of bribery, in the name of human relations, is true of bribery crime. The frequent occurrence of the criminal law of this type of bribery is faced with legislative obstacles and judicial difficulties. It is not only the talk of the people after dinner, but also the challenge of the judicial workers' desk. It is also a hot spot of theoretical discussion. This article is divided into three chapters. On the whole, we first determine the connotation of the "emotional investment" type of bribery, and examine the specific practice of the judicial practice by reviewing the relevant provisions of the current legislation, and putting forward the problem consciousness of this article; and searching and analyzing the solutions and various theories put forward by the theorists on the problems found, on the basis of which the opinions of each family are carried out. In the end, the first chapter is a chapter on the problem of solving the problem. The first chapter is the chapter of the problem. First of all, this chapter defines the connotation of the "emotional investment" type of bribery, and briefly describes the relationship with the similar concepts, and then from the criminal administration. The second section of this chapter, through the investigation of the current legislative provisions, finds that the "emotional investment" type of bribery is governed by the current legislative provisions. In particular, there is a shortage of legislative supply, especially "use the convenience of the service" and "seek benefits for others". To a certain extent, to a certain extent, the criminal law regulation of this kind of bribery is set up. Through the analysis of the concrete practice of judicial practice, it is found that the judicial qualitative difference of this type of bribery in practice is different and the method of judging the relationship between the price relationship is not scientific and reasonable. The second chapter focuses on the analysis of the questions put forward by the academic circles to the other party. In the case of legislative obstacles, it is based on the standpoint of revising the legislation, advocating the view of adding new charges and revising the constitutive requirements of the crime of bribery; and the viewpoint of reinterpreting the constitutive requirements of the crime of bribery and the constitutive requirements of the crime of corruption based on the position of law hermeneutics, thus forming a one yuan conviction of the crime of bribery and one yuan conviction for the crime of corruption. And the two yuan conviction of "the crime of corruption and the crime of bribery". However, there are many defects in the theory and possible consequences of the road of legislative amendment, which should not be adopted. Although the choice of the road of legal hermeneutics is reasonable as a whole, there is a fundamental shortage of the one yuan conviction theory and the two yuan conviction of "corruption and bribery". It is worth discussion, and the one yuan conviction of the crime of bribery should be deepened and perfected. On the judgment method of the relation of price in judicial practice, the existing typical views also have some drawbacks in the judgment elements and judgment standards, and the discussion is not thorough enough and the conclusion is too conclusive. Therefore, the more realistic solution is based on the current criminal law, From the angle of legal hermeneutics, it clarifies the connotation of the elements of the crime of bribery and explores the scientific method of determining the relationship between price and price. On the basis of the first two chapters, the third chapter tries to find out the solution to the problems faced by the criminal law regulation of "emotional investment". At the beginning of this chapter, the protection law benefits of the crime of accepting bribes - the non buying property of the duty behavior - The guidance is further elaborated on the connotation and function orientation of "making use of the convenience of the post" and "seeking benefits for others". The scope of the former is appropriate and its core element is the influence of power; the latter should take the new and objective elements to say that the content of the former is appropriate to the promise and "emotional investment" in the bribe. In accordance with the presumption rules established by the judicial interpretation, the elements of "seeking benefits for others" should be identified. These two elements are all objective elements of the crime of accepting bribes and jointly undertake the task of explaining the relationship between the price of accepting bribes, and the former can be replaced by "by virtue of the convenience of the duty", the purpose of which is to show that the property is a duty line in general. The third section of this chapter first clarifies the general principle of judging the relationship between price and price in the crime of bribery. The contents of this chapter mainly include the general principle of judging the relationship between price and price in the crime of bribery. There are two aspects of the judgment standard of the eight elements of judgment and the social equivalence; after that, according to the specific provisions of the crime of bribery, the relevant reference elements are deconstructed and diverted to the two important elements of "using the convenience of the job" and "seeking for the benefit of others". The judgment of the convenience of service should be divided into two steps, positive and reverse, in order to prove the possibility of the existence of the relationship between price and price. The identification of "seeking benefits for others" should be concentrated on the judgment of the basic facts that may affect the exercise of power. Combining the above convenience with the two requirements of "seeking benefits for others" can more accurately identify the consideration relationship in "emotional investment" bribery.
【学位授予单位】：中南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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