论受贿罪中的“为他人谋取利益”

On "Securing Benefits for Another" Involved in the Crime of Acceptance of Bribes

"为他人谋取利益"旨在说明国家工作人员收受的财物与其职务之间具有对价关系;"为他人谋取利益"中的"他人"包括行贿人、行贿人所指示的第三人以及单位,"利益"包含正当利益与不正当利益;将"为他人谋取利益"限定为客观上实施了谋取利益的具体职务行为或者解释为主观要件要素,不具有合理性;"为他人谋取利益"的最低要求是许诺为他人谋取利益;事先没有约定,在为他人谋取利益之后收受作为职务行为的不正当报酬的财物的,成立受贿罪;"为他人谋取利益"的行为构成其他犯罪的,除刑法有特别规定的以外,应当与受贿罪实行并罚。

'Securing benefits for another' is designed to make clear that there is a quid pro quo between the position of the state functionary and the money or property accepted by him. The 'another' involved in the 'securing benefits for another' includes not only the briber, but also the third party or unit designated by the briber. The legitimate interest and the illegitimate interest are all covered by the 'benefits' thereon. It is somewhat irrational to restrict the 'securing benefits for another' to performing the specific functional act in the objective respect, or to interpret it as a subjective constitutive element. Promising to secure benefits for another satisfies the minimum requirement of the 'securing benefits for another'. In the circumstance of no agreement in advance, but accepting the money or property as the illegitimate reward for the functional act after securing benefits for another, there is a crime of acceptance of bribes. On the occasion of the functional act satisfies the constitutive elements of the other crimes, unless the criminal law stipulates some special clauses, the crime of acceptance of bribes and the other crimes committed should be sentenced in accordance with the joinder of punishment for plural crimes.