贪污受贿犯罪之量刑标准的再界定

Redefining the Sentencing Standards of Corruption and Bribery

"数额+情节"量刑标准虽相比于传统的"计赃量刑"模式有一定的进步,但无法完全解决贪污受贿犯罪之量刑标准的体系性困境。突破这一困境的教义学路径在于:立足于报应和预防的二元刑罚目的观,认真对待"原点报应+罪刑阶梯"的量刑标准,其中,原点报应是实现预防犯罪之目标所需的刑罚量,其不在于架设罪、责、刑之间的阶梯,而是根据数额或情节对预防刑进行适度考虑,以免出现惩罚报应带来的刑罚过剩现象。而罪刑阶梯的架设,需要重视罚金等财产刑对实现量刑公正的意义。以原点报应实现犯罪预防和以财产刑架设罪刑阶梯,应成为贪污贿赂犯罪之法定刑的内在标准。

Compared with the traditional sentencing standard ＂counting illicit money ＂, the sentencing standard＂amount ＋ circumstances＂has improved a lot,but it still can＇t solve completely the systematic dilemma of the sentencing standards of corruption and bribery. The dogmatic path to break through the dilemma is to take the sentencing standard ＂origin of retribution ＋ ladder of charges and punishment＂seriously,established in the binary purposes of retribution and prevention. ＂Origin of retribution＂means the amount of punishments to realize the purpose of prevention of crime and moderate consideration of preventive punishment based on amount and circumstance in case of surplus punishment brought by punishing for retribution,rather than establishing the ladder among crime,responsibility and punishment while establishing the ladder between charges and punishment needs to give priority to the meaning of fine and other property punishments to realize the justice of measurement of penalty. In so,it is the prevention of crime by origin of retribution and the ladder between charges and punishment by property punishment that becomes the inner standard of legal penalty of corruption and bribery.