商业贿赂犯罪刑法适用疑难问题探析

Several Problems on the Application of Criminal Law about Commercial Bribery Crime

具有市场价格且受贿人实际取得价值的礼券应当计入商业贿赂犯罪数额;将免费旅游界定为商业贿赂,并非意味着与免费旅游相关的费用一概认定为商业贿赂数额;应将以金钱为背景、体现贿赂犯罪权钱关系的性贿赂认定为商业贿赂。受贿人在接受行贿人财物后提供了违反法律、法规、规章、政策、行业规范规定的帮助,但行贿人没有提出要求的,不能认定为"谋取不正当利益"。复数实行犯情况下以主犯的罪名确定将共犯认定为受贿罪还是非国家工作人员受贿罪,具有合理性,但在特殊情况下应根据共犯理论与有利于被告人原则进行调适。

The vouchers that have market price and are consumed by the bribee should be included in the amount of commercial bribery. The definition of free travel as commercial bribery doesn＇t mean all related cost is included in the amount of commercial bribery. Sexual bribery that implies power and money should be defined as commercial bribery. If the bribee offers help that violates law, regulation and trade norms to the briber after the acceptance of the briber＇s money, but the briber doesn＇t have any request, it should not be defined as ＂seeking unjust benefit＂. Usually it is reasonable to determine whether the accusation of the accomplice is bribery or non-governmental staff bribery according to the accusation of the principal offender, but under special conditions adjustments should be made according to the theory of joint offender and the principle of benefiting to the accused.