“为他人谋取利益”要件的反思

Retrospection on Essentials for "Enlisting Benefits for Others"

我国现行刑法中有关受贿罪内容与《联合国反腐公约》相比较有一定差距,而且司法实践中暴露出来的现行有关受贿罪立法的不足直接影响我国对受贿罪的打击力度,为推动我国刑法国际化和反腐斗争的深入开展,我国有关受贿罪立法的完善势在必行。研究了“为他人谋取利益”要件理论争执及其局限性。无论把“为他人谋取利益”作为受贿罪的客观要件还是主观要件,都存在不科学的地方,建议取消“为他人谋取利益”的规定。

There is big disparity between the contents about bribery in present Criminal Law and UN Convention Against Corruption. The disadvantages of legislation about bribery disclosed in judicial practice directly impact the striking power against bribery in China. To facilitate the internationalization of Criminal Law and the thorough development of anti-corruption, the improvement of legislation on bribery is imperative under such situation. In this article, the limitation and theoretical controversy of ＂enlisting benefits for others＂ are investigated. It is advocated that regarding the matter of ＂enlisting benefits for others＂ as objective or subjective essential is unapt and the rules on ＂enlisting benefits for others＂ should be discarded.