“截贿”行为定性的困境与破解

The Dilemma and Solution of the Qualitative Analysis of “Intercepting Bribes”

"截贿"行为在实践与理论中的讨论依然很不充分。作为"截贿"行为对象的财物具有赃物与犯罪所用之物的双重性质。财产法益化的"截贿"财物使之可以成为财产犯罪的对象。在涉及截取贿赂的场合中,依然可以通过有无明确的贿赂对象来判断是不法委托(寄托)还是不法原因给付。有明确贿赂对象的,其交付委托财物的行为不具有"终局性",是不法委托(寄托);侵吞该贿赂的构成侵占罪。没有明确贿赂对象的,其交付委托财物的行为具有"终局性",符合不法原因给付;侵吞该贿赂的,虽然构成侵占罪的构成要件该当性,但违法性上受到阻却,因此不构成侵占罪。

The behavior of "intercepting bribes" is still inadequately discussed in practice and theory. As the object of "intercepting bribes",the property has the dual nature of criminal goods and criminal tools. The legal interest of property makes the property of intercepting bribes become the object of property crime. In the case of interception of bribery, it is still possible to judge whether it is illegal entrustment or illegal payment by whether there is a clear object of bribery. If there is a clear target of bribery, the behavior of delivering is an illegal entrustment because the entrusted property does not have "finality". Embezzlement of the bribe property constitutes a crime of embezzlement. If there is no clear target of the bribery, the behavior of delivering the entrusted property is "final",and is in accordance with the payment of illegal reasons. If the bribe property is embezzled, although the constitutive requirements of the crime of embezzlement are appropriate, the illegality is hindered, so it does not constitute the crime of embezzlement.