创新中国贿赂犯罪刑法立法之选择——基于刑法预防功能的考察

Innovating Chinese Criminal Law Legislation against Bribery Crime: A Study Based on Preventive Function of Criminal Law

根据现代腐败的衍生机理与治理需要,世界主要国家反腐立法经历了由以惩治法为中心向以预防法为导向的重大转型,立法体系构建中扬弃了传统的以刑法为中心的应对策略,预防功能理论的优化,奠定了预防性刑法立法的基础。中国当下贿赂犯罪刑法立法虽几经修正,但因在立法定位选择上仍固守于"后发式"惩治的基点之上,应对"增量腐败"的预防能力仍有不足。腐败治理的深化时期,中国有必要合理借鉴域外经验,彻底更新腐败治理理念,通过确立"利益冲突"的法益判断基准,变革构成要件要素内容,以将预防功能植入于贿赂犯罪罪刑规范之中,实现中国刑法贿赂犯罪治理的根本转型。

To follow the derivative mechanism of bribery crime and the need of governance,the legislations of anti-corruption in some countries have been changed from punishment-oriented mode to the prevention-oriented one,and have abandoned traditional strategy,which was centered on criminal law.The improved prevention theory is now the basis of preventive criminal legislation.China’s criminal legislation of anti-corruption has had several amendments.However,due to the legislative adherence to the basis of post-punishment,it has shown its inadequacy in the preventive capability against the increase of corruption.In the time of deepening corruption punishment,it is necessary for China to make fundamental reform in its governance of anti-corruption by introducing foreign strategies to improve its own concept of anti-corruption,and put preventive function into criminal law against anticorruption through both establishing judgment standards for conflicts of interests and making changes to the constituents of certain crimes.