全球视野下商业贿赂刑法规制问题再探讨

Further Research on Global Criminal Regulations of Commercial Bribery

从商业贿赂行为的全球刑事立法进程看,不仅开始较晚,发展较缓慢,而且主要国家在相关立法和刑事政策方面仍存在一些争议。虽然制定有效的刑事法律规制商业贿赂犯罪,确实存在一些现实的困难,但仍有必要设置商业贿赂犯罪。商业贿赂犯罪与公职人员贿赂犯罪在犯罪的性质和社会危害程度上都有所不同,应将二者相区别。我国在惩治商业贿赂犯罪时,应进一步明确商业贿赂犯罪的刑事政策,并贯彻宽严相济的刑事政策,即以宽为主,以严为辅,宽严互补;分别探讨商业贿赂犯罪与公职人员贿赂犯罪的立法完善问题;正确看待刑法在治理商业贿赂中的作用,注重完善刑事程序法的相关制度,重视犯罪预防的重要性及其他治理措施的作用。

In terms of the international criminal legislation process of commercial bribery,it started relatively late with slow development,and also has a few controversy issues on legislation and criminal policy among some major countries. Although there are a number of difficulties in practice while making effective criminal laws for commercial bribery,we still need to make commercial bribery crimes in all countries. Commercial bribery crimes are quite different from official bribery crimes both in the nature and social harmfulness of the offences. So we have to make a distinction between these two crimes. As for the criminal regulation of commercial bribery in China,we should make the criminal policy more clear,and implement the criminal justice policy of combining leniency with rigidity that is focusing more on ＂being lenient＂,less with＂being severe＂and ＂combining leniency with rigidity＂. As for the legislation improvement of commercial bribery crimes,we need to study this separately,especially not together with that of public bribery crimes. Also,we must pay more attention on making a better Criminal Process Law and crime prevention measures to combat commercial bribery more effectively.