套取科研经费的刑法规制分析

Analysis of the Criminal Nature of the Behavior of Illegal Extracting and Possessing Scientific Research Funds

对套取科研经费的行为,刑事司法实务界大都以贪污罪定罪处罚,但判决书中说理语焉不详。刑法理论界对此行为的定性则见仁见智。在现有的法律框架下,公立科研机构的科研项目负责人套取的不管是横向科研经费还是纵向科研经费,都可以定贪污罪;民办科研机构的科研项目负责人套取科研经费的定为诈骗罪。但这样定性会导致同样的行为不同罪也不同罚,无法实现正义;同时,定贪污罪或诈骗罪均无法反映出套取科研经费行为对科研秩序的侵犯及其程度。因此,从长远看,应该增设"科研经费诈骗罪"规制套取科研经费数额较大或情节较重的行为。

As for the behavior of illegal extracting and possessing scientific research funds, the judicial circle has defined most of such behaviors as crime of corruption, but hasn＇t elaborated the reason in the verdict. The theoretical circle has different opinions towards it. Under the existing legal framework, the behavior of illegal extracting and possessing of scientific research funds should be regulated differently by criminal law. Illegal extracting and possessing of scientific research funds by research project leaders in state-owned research institutions can be defined as crime of corruption, while such behavior by project leaders in private research institutions can be defined as crime of fraud. However, such disposition will lead to injustice, that is, the same behavior results in different crimes and different penalties. What＇s more, such disposition will not reflect infringement of scientific research order. Therefore, in the long run, crime of fraud of scientific research funds should be added in criminal law to regulate such behavior.