官员收受礼金的刑法规制探析——基于司法解释的视角

Analyzing the Criminal Law's Regulation of Officials Accepting Gifts: from the Perspective of Judicial Interpretation

"感情投资"贿赂模式中的官员收受礼金的行为属于受贿罪的预备行为,最新贪污贿赂司法解释第13条第2款将其有条件的评价为受贿罪的实行行为,具有实质的合理性;在现行《刑法》成立受贿罪要求"为他人谋取利益"的构成要件要素制约下,解释中"可能影响职权行使的,视为承诺为他人谋取利益"是一种法律推定,只有满足行送者的利益与收受者的职务有密切的关联性、收受者收受财物的行为使得"可能影响职务行使"发生的盖然性高、收受者职权的行使在事实上受到了影响等3个条件,才能推定收受者承诺为行送者谋取利益,从而以受贿罪对收受者定罪处罚。

Bribery mode of ＂emotional investment＂ in official accepting gifts behavior can be defined as the preparatory behavior of bribery crime. The latest judicial interpretation of corruption in the second paragraph of article 13 will determine the nature of bribery crime by evaluating the conditions for such a behavior. It has substantial rationality. In the existing ＂ Criminal Law,＂ the establishment of the bribery crime requires the restrictive elements ＂seeking the benefit for others＂, may affect interpreta- tion of ＂the exercise of powers,as a commitment to seek benefits for others＂ is a kind of legal presumption. Bribery can be described as the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties. The expectation of a particular voluntary action in return is what makes the difference between a bribe and a private demonstration of goodwill. To offer or provide payment in order to persuade someone with a responsibility to betray that responsibility is known as seeking Undue Influence over that person~ actions. When a public official accepts a bribe, he or she creates a conflict of interest. That is, the official cannot accommodate the interests of another party without compromising the responsibilities of her or his position.