论利用影响力受贿罪司法认定中的几个问题

Research on Problems of Judicial Determination For Crime of Bribery by Using Influence

利用影响力受贿罪是《中华人民共和国刑法修正案(七)》中的新增罪名,虽然其在犯罪构成上与斡旋受贿行为有相似性,但在具体理解上却有明显的区别。利用影响力受贿罪的犯罪主体不仅包括了近亲属还包括了"其他"密切关系人,在近亲属的理解上应当采取民事关系认定中的广义概念,在其他密切关系人的认定上要结合客观条件具体判断,做到主客观相统一。在判断行为人是否利用影响力时,应按照一般人的标准进行事前判断,在影响力对象的判断上需要结合具体情况具体分析。

In the Criminal Law amendment(Ⅶ), bribery by using influence is a newly-increased crime. Although it is similar with mediating bribery crime in behavior style, there are obvious differences in understanding the constitution of the two crimes. This paper, based on two actual cases, introduces the object of the crime and the standard on judging influence. The object of crime of bribery by using influence includes not only close relatives that should be identified in civil law legal relationship, but also others who has close relationship with it. We should judge the influence according to the rule set for the general people and analyze it in concrete situation. Besides, in order to deal with the phenomenon of false promises and people who link the relationship for bribery, we discuss the theory of fraud, accomplice and intermediary behavior from the perspective of the distinction between the bribery by using influence and the common bribery.