关于斡旋受贿犯罪独立性的立法思考——与《联合国反腐败公约》接轨

Legislative Thinking About the Independence of Medi-bribery Offence

随着《联合国反腐败公约》(以下简称《公约》)的签署和正式批准,我国的反腐败进程迈向了新的阶段,但同时也面临着国内刑法与国际刑法顺利接轨的挑战。目前我国《刑法》中诸多规定与《公约》内容不符。基于对《公约》的分析,认为斡旋受贿犯罪与普通受贿罪具有本质上的差异,应当独立成罪,且其犯罪主体应该扩大至具有影响力的非国家工作人员,其行为人所利用的便利条件,不是指行为人与其下级之间的制约关系,而应该是非制约关系的社会影响力。

With the signature and the formal approval of ＂United Nations Corruption＂,＂Convention＂the short in the following,the fighting against corruption Convention against is getting to a new phase in our country. However,we are also faced with the challenge of conforming our criminal law to the ＂Convention＂ easily. There are many differences between our criminal law and the ＂Convention＂ presently. Analyzes the ＂Convention＂ and holds that medi-bribery offence should be independent of the general bribery as they differ in nature. The offender should include those who are not national public servants but have social influences. The condition which the offenders make use of is not the restricting relationship over their subordinates,but the social influences of non-restricting relationship.