收受贿赂又实施渎职行为的应当按一罪处罚——以《刑法》399条第4款规定为视角

The Conduct of Both Accepting Bribes and Dereliction of Duties Should Be Punished as A Single Crime——From the Perspective of Item 4,Article 399 in Criminal Law

《刑法》第399条第4款"从一重罪"处罚的原则,不是基于牵连犯或想像竞合犯理论,而是将行为人渎职行为同时理解为受贿罪中的"为他人谋取利益,"属于渎职犯罪与受贿罪的法条竞合。该条款是刑法的注意规定,而非例外规定。对除该条款规定之外收受贿赂实施渎职犯罪的,应当按照法条竞合原理进行解释,根据重法优于轻法的原则处理。

The principle of punishing 'according to a more serious crime' of Item 4,Article 399 in Criminal Law,is not based on the theory of implicative crime or imaginative jointer crime,but construe the conduct of dereliction meanwhile as 'to benefit other people' in the bribery crime,which is an overlap between dereliction crime and bribery crime.This item is an attentive provision instead of an exceptive provision in the Criminal Law.The conduct of both accepting bribes and dereliction of duties which is except for this item,should be interpreted according to the theory of provision overlapping,and be dealt as to the principle of the serious law prior to the slight law.