关于贪污罪依情节定罪量刑标准之情节研究——以两高贪污贿赂司法解释为考察中心

On Circumstance of Case-oriented Conviction and Sentencing Standard for Corruption Crimes——Centered on Judicial Interpretation of Corruption and Bribery of SPC and SPP

《贪贿解释》对贪污罪依情节定罪量刑标准中的情节作出的具体规定存在一定问题。把行为人犯罪后的认罪态度作为定罪以及加重处罚的决定因素,为反腐工作带来极大困难;"曾因贪污、受贿、挪用公款受过党纪、行政处分的"规定违背了刑法的谦抑性;"曾因故意犯罪受过刑事处罚的"作为加重处罚情节之一,不仅违背了刑法的谦抑性,还违反了禁止重复评价的法理。对此,应当建立关于贪污罪的刑事再犯制度。

The Bribery Interpretation contains some problems on specific provisions for circumstance of ease - oriented conviction and sentencing standard in the crime of corruption. What will bring great difficulties to anti - corruption work is that the actor＇ s attitude of guilt plea is regarded as the decisive factor to convict and aggravate punishment. The provision ＂one was punished for corruption, bribery and embezzlement by party discipline or administrative sanction＂ violates the tolerance of criminal law; Taking ＂one was punished with criminal penalty for intentional crime＂ as one of the case for aggravating punishment is in the violation of both the principle of pro- tection against repeated evaluation and the tolerance of criminal law.