受贿罪疑难问题探究

On the Tough Issues in Bribery Crimes

随着国家加大对贪污受贿犯罪打击力度,大量新型受贿行为不断涌现,对受贿罪传统认识产生巨大冲击,逐渐纳入法治轨道的国际追逃追赃也对刑法规定提出新要求。关于受贿罪本体,将"贿赂"界定为不正当利益,扩张其范围,通过解释将"使用贿赂"、"服务贿赂"、"捐赠贿赂"纳入其中,将受贿罪法益确定为对国家工作人员职务廉洁性的侵害,既遂形态由结果犯改为行为犯,将"事后明知"纳入明知的范围,通过期待可能性理论排除"被动受贿"可责性,并对共同受贿中的"推定明知"从主客观两方面进行分析、限定。

With the intensification of cracking down corruption and bribery by our government,new types of briberies emerge in abundance. Not only the traditional concept of bribery has been affected greatly but also the new demands has been brought up for the regulations and rules of criminal law by the international hunt for the corrupt officials who flee abroad and recovering ill- gotten gains,which is gradually brought into legal institution.With regard to bribery crime,taking bribe is defined as illegal gains and accordingly the scope of bribery crime has been enlarged. In addition,the denotation brings into the bribe in the form of offering the right to use,the bribe in the form of offering service and the bribe in the form of donation. As a result,bribe- taking is defined as the infringement on the honesty of public servants. That is,the consequence offence is switched into conducting crime and ＂after- knowing＂is fit into the scope of ＂clearly knowing＂. Moreover,culpability of passive bribery is excluded by the theory of anticipated probability and at the same time presumption of knowledge in joint crime of bribery has been analyzed and defined from both the subjective and object aspect.