受贿罪行为方式研究

On the Behavioral Forms of the Crime of Accepting Bribes

我国现行刑法对于受贿罪仅规定了索取与收受贿赂两种行为方式,对于约定贿赂的方式则仅在司法解释中有所体现,而且并不完整。约定贿赂行为的危害性很大,刑法应将其纳入调整范围。由于刑法受贿罪既遂理论采取收受财物标准说,因而受贿罪的基本罪状应从是否取得他人财物方面去界定,索取、收受、约定等具体行为方式只是表明主观恶性,危害程度差异(量刑情节),并不决定受贿罪的认定。但现行刑法一方面将索取与收受贿赂作为受贿罪的基本罪状并列在一起,构成受贿罪的罪刑规范,同时又规定索取为加重罪状,显然有所不妥。宜修改为:国家工作人员,利用职务之便,获取他人财物的,是受贿罪。有索取行为的,从重处罚。

China＇s current criminal law only provides for two forms of bribe-taking and bribe-accepting; and ＂agreement bribery＂ is only reflected in the judicial interpretation, which is incomplete. Agreement bribery is such a harmful act so that it is necessary for our criminal law to adjust the scope of its inclusion. Because the bribery crime accomplishment standards in the criminal law takes the standard of accepting property, the crime shall be defined by whether obtaining others＇ property; asking for, receiving, agreed on the bribes are just specific behavior showing the subjective viciousness, the harm degree difference （sentencing circumstances）, which does not decide the cognizance of taking bribes. But in the current criminal law, on the one hand, asking for and taking bribes are coordinated together as the basic guilt, constituting the norms and regulations of bribery crime; on the other hand, request for weighting is defined as indictment, which is obviously wrong. It should be modified as： state personnel＇s taking advantage of their positions to obtain others＇ property is taking bribes. The behavior of the request for bribery shall be given a heavier punishment.