受贿罪罪刑配置问题之反思与消解

Reflection of the Punishments Prescribed for the Crime of Accepting Bribes and the Solution

如何妥当配置受贿罪的罪刑体系,不仅是刑法理论界争论不衰的议题,更是关乎受贿罪惩治预防效果的实务难题。当前我国受贿罪的罪刑体系配置条款存在诸多缺陷,同时因为我国《关于办理贪污贿赂刑事案件适用法律若干问题的解释》违背立法规定,提升受贿罪的入罪门槛,导致数额模式的不当回归,容易带来罪刑评价不足、罪责刑失衡的问题,不利于有效预防、公正量刑和刑罚目的的实现。应构建以情节为中心的法定刑评价模式,同时以受贿人违背职责义务程度作为情节轻重的标准;实现受贿罪刑罚设置的独立化;转变治理贿赂犯罪的刑事立法理念。在以保障人权、打击犯罪为最高宗旨的刑法领域,受贿罪的罪刑配置应做到立法协调合理、司法衔接有序、量刑科学公正。

How to properly prescribe the punishment for the crime of accepting bribes is not only a topic of long-standing debate among the criminal law academia,but also a practical poser concerning the effect of punishment and prevention of accepting bribes. At present,there are many shortcomings in the provisions on the crime and punishment of accepting bribes in China. At the same time,the Interpretation of Certain Issues concerning the Application of Laws to Criminal Cases of Corruption and Bribery violates the legal provisions and raises the threshold for the crime of accepting bribes and leads to improper return of the amount model,which is likely to result in the problem of insufficient evaluation of crimes and corresponding punishments and imbalance between crimes and punishments and goes against the realization of effective prevention,fair sentencing and purposes of punishment. A prescribed punishment evaluation model centered on the circumstances should be constructed and at the same time the degree of the bribee’s breach of duty is regarded as the standard of deciding the level of severity of circumstances;the punishment prescribed for accepting bribes shall be independent and the criminal legislative concept on governing the crime of accepting bribes shall be transformed. In the field of criminal law with the utmost aim to safeguard human rights and combat crimes,the punishments allocated to the crime of accepting bribes should be rational and coordinated in terms of legislation,connected and orderly in terms of justice,scientific and fair in terms of sentencing.