廉洁性不是贪污贿赂犯罪的法益

Cleanness Not the Legal Interest of the Crimes of Embezzlement and Bribery

我国现行刑法将侵犯廉洁性作为贪贿犯罪的本质特征,延续了两罪同罪同罚的立法传统,深化了对腐败犯罪的认知。将廉洁性作为法益统摄贪贿犯罪,造成法益与构成要件关系的紧张,混淆两罪侵财与渎职的性质,引发罪名体系和定罪量刑标准的结构性矛盾。廉洁性是国家工作人员必须遵守的行为规范,而非规范所保护的对象化客体。现行的相关立法并不具有根据法益安排贪贿犯罪罪名体系的理论自觉。贪污罪和受贿罪具有不同的不法内涵,前者侵犯的是国家法人的财产,本质上是一种个人法益;后者侵犯的则是职务行为的不可收买性,是一种集体法益。由此可以澄清现有立法和司法的误区,明确贪贿犯罪的立法方向。

The current criminal law of China regards cleanness as the essential feature of crimes of embezzlement and bribery, which inherits the legal tradition that the two kinds of crimes enjoy the same nature and punishment, deepening understanding on crimes of corruption. However, taking cleanness as the legal interest to criminalize embezzlement and bribery causes the tension of relationship between the legal interest and constituent elements of a crime, confuses features of such two kinds of crimes such as property infringe- ment and dereliction of duty, leads to a structural conflict in the system of the name of crimes and the crite- rion for conviction and sentence. Cleanness is the norm of conduct that state functionaries must abide by rather than the object protected by the norm. The current relevant legislation does not enjoy the theoretical self-consciousness to arrange the system of names of crimes of embezzlement and bribery. The crime of em- bezzlement and crime of bribery are different illegal conducts. The former infringes on national properties which is essentially a kind of personal legal interest while the latter infringes on the non-purchasable nature of duty-related behaviors which is a kind of collective legal interest. Thus, the misunderstanding in current legislation and judicial practice can be corrected and the direction of legislation on crimes of embezzlement and bribery can be clarified.