从六赃到德日财产犯罪——我国贿赂犯罪的分层立法建言

From Six Booty Crimes to Property Crimes in Japan and Germany——The Suggestions for Layering of Bribe Crimes in China

六赃中的"受财枉法"与"受财不枉法"以是否"枉法曲断"为界限进行划分,在法定刑上有所差异。德日刑法理论中关于受贿罪的法益之争分为"不正当必要说"与"不正当不要说"两大阵营。前者将不正当行使职权视为受贿罪一般情形,正当行使职权的行为视为危险犯;后者将行使职权的行为作为基本犯,而不正当行使职权系加重受贿罪。无论采用何种学说,枉法受贿罪与不枉法受贿罪界限分明,且在德日刑事立法中均有所体现。我国将受贿罪侵犯的法益定位为"廉洁",但这样的定位不仅模糊不清,且未体现出受贿罪中"不正当行使职权"与"正当行使职权"的界限。我国应当区分受贿罪与枉法受贿罪,并在法定刑上体现两者的差异。

Accepting property with or without preverting the law in six booty crimes is divided from trying a case unjustly, and thus different punishment is taken. Legal interests of property crimes in Japan are divided into two theories, the difference is if unlawfulness is needed or not. The former sees the act of preverting the law as the basic act, and the act of discharging oners powers as the potential damage offense. The latter sees the act of dis-charging oners powers as the basic act, and the act of preverting the law as the aggravating circumstances. No mat-ter what theory it takes, the difference of accepting property and preverting the law with accepting property without preverting the law is obvious. In China, the distinction of the two is blurry. We should distinguish the situations of accepting property with preverting the law or not and set different punishment.