适时依法赦免腐败犯罪的可行性研究

On the Feasibility of Legal Amnesty for Corruption Crime

现代刑法的宽容价值是探索腐败犯罪赦免制度的基础,但却涉嫌与"老虎、苍蝇一起打"的"零容忍"政策、民意诉求、政治基础、现行法律等相抵牾。基于腐败犯罪原因复杂、"原罪"的客观存量、反腐惩防并举观念、反腐兼顾治标与治本、宪法的特赦规定及八次实践等因素,赦免腐败犯罪应在坚守不得已性原则下严格依法适时启用。我国特赦的持续有效实践为激活特定腐败犯罪的特赦奠定合法性基础和提供充实的既往经验,应围绕"单纯贿赂行为"、收受财物后及时退还或上交、"廉政账户"和其他轻微腐败犯罪讨论特赦的具体适用范围,特赦的法律效果应严格管控为依法定罪但免除或部分免除刑罚处罚。

The intrinsic value of tolerance in modem criminal law system has provided concrete foundation to explore the contemporary amnesty system for corruption crime, while it seems contradictory with the ＂zero tolerance＂ criminal policy against corruption, the public opinion, political arrangement and present provisions. The amnesty for corruption crime should be initiated very carefully and applied legally with full consideration of the complex causes of corruption crime, mutual coordination of punishment concept and prevention concept for anti-corruption, the balance between qualitative battle and quantitative battle towards corruption crime and the present provision and eight practices of amnesty in Constitution. The past judicial practice of amnesty in Constitution for the specific crimes had laid solid foundation and provided legitimacy basis for the construction of amnesty system for corruption crime. As for the consideration of application range, ＂the pure bribery＂, ＂the behaviors of promptly refunding and handing in after accepted property＂ and ＂honest account for corruption＂ and other misdemeanor should be the four key circumstances. The current legal effect of the amnesty for corruption crime should be strictly limited to sustain the activities of accusation and conviction but exclude from the whole or a part of execution of punishment.