对非国家工作人员行贿罪的立法论思考

Reflections on the Legislation of the Crime of Giving Bribes to a Non-state Staffer

单位实施的对非国家工作人员行贿罪,其罪刑配置背离贿赂罪治理整体政策基准.一方面,其法定刑配置远高于单位行贿罪,偏离了"重公职贿赂,轻商业贿赂";另一方面,由于"数额巨大"标准的缺失,其实际量刑又显著轻于单位行贿罪.这就造成了对非国家工作人员行贿罪的制度分裂."数额巨大"标准的缺失消解了本罪的严厉性,但却造成数额认定和量刑的混乱.因此,两罪的罪刑不均衡应通过立法而非司法方式调整.从立法论上说,应通过升高单位行贿罪法定刑,明确对非国家工作人员行贿罪"数额巨大"标准的方式达到两罪的罪刑均衡.

The crime of giving bribes to a non-state staffer(implemented by the unit)is special.On the one hand,the setting of punishment of it is much higher than the crime of bribe offered by a unit,deviating from the overall policy benchmark of “emphasis on official bribery,light on commercial bribery”.On the other hand,due to the lack of the standard of“large amount”,its actual sentencing is significantly lighter than the crime of bribe offered by a unit.This has resulted in a system split in the crime of giving bribes to a non-state staffer.Although the absence of the standard of ularge amount^of the crime of giving bribes to a non-state staffer has eliminated the severity of the punishment,it has also caused confusion in the determination of amount and sentencing in judicial practice.Therefore,the imbalance between the crime of giving bribes to a non-state staffer and the crime of bribe offered by a unit should be adjusted by legislation rather than by judicial means.From the perspective of legislation,we should increase the punishment of the crime of bribe offered by a unit,meanwhile clarify the standard of“large amount”in the crime of giving bribes to a non-state staffer,so as to balance the punishment of the two crimes.