受贿未遂标准的法教义学反思与再造

Reflection and Reconstruction of Legal Doctrine on the Standard of Attempted Bribery

为他人谋取利益,是渎职型受贿罪构成要件的内容,也是受贿罪职务行为评价的重心。个罪未遂是以构成要件为中心的判断,而构成要件受制于个罪的保护法益;如果认可受贿罪的保护法益与财物无关,则对财物的占有或控制的受财行为,不是受贿未遂评判的核心。受贿未遂当以职务行为为中心而逻辑展开,“为他人谋取利益”是受贿罪中“利用职务上的便利”的明确化,承载着受贿罪的保护法益。行为人收受财物后承诺为他人谋取利益,但由于客观原因而未能实现的,才属于犯罪未遂。如此定义受贿未遂不仅清晰地呈现了承诺与实现谋取利益在不法性评价上的不同意义,使斡旋受贿、事后受贿、感情投资的认定难题迎刃而解,而且符合从严治理腐败刑事政策的目的性要求。

Seeking benefits for others is not only the content of the constituent elements of the crime of dereliction of duty bribery, but also the focus of the evaluation of duty behavior of the crime of bribery. The attempted crime is a judgment centered on the constituent elements, and the constituent elements are subject to the protection legal interests of the crime. If it is recognized that the protection legal interests of the crime of bribery have nothing to do with property, the possession or control of property is not the core of the judgment of attempted bribery. The attempted bribery should be logically carried out with the position behavior as the center, “seeking interests for others” is the clarification of “taking advantage of position” in the crime of bribery, which carries the protection of legal interests of the crime of bribery. If the perpetrator promises to seek benefits for others after receiving the property, but fails to achieve it due to objective reasons, it is an attempted crime. Such a definition of attempted bribery not only clearly shows the different significance of commitment and Realization in the evaluation of illegality, which solves the identification problems of mediation bribery, post bribery and emotional investment, but also meets the purposeful requirements of the criminal policy of strict governance of corruption.