裁判员受贿操纵体育竞赛的刑法规制——一个中德刑法的比较考察

Criminal Law Regulation of Manipulation of Sports Competitions by Bribed Referees—A Chinese-German Comparison of Criminal Law

裁判员受贿操纵体育竞赛的行为严重破坏了体育竞技赛事的正常运行,因而有必要在刑法上加以规制。然而,分析此类行为在现行刑法上可能涉及的罪名可知,受贿罪和非国家工作人员受贿罪在此并无适用空间,至于诈骗罪则仅当涉及体育赌博时方可有限地被适用,因此有必要增设新罪名。关于规制操纵体育竞赛的刑事立法模式,德国刑法于2017年所增订的体育赌博诈骗罪与操纵职业体育竞赛罪采取了“不法约定模式”,其将犯罪构成要件的核心置于通过贿赂所达成的事前不法约定,存在过度提前处罚的疑虑。我国关于增设操纵体育竞赛罪名的立法建议则多采取“操纵行为模式”,其系以操纵行为作为犯罪构成要件的核心,但因难以明确界定操纵行为的概念而导致构成要件范围过于宽泛。由于上述两者皆存在缺陷,本文在对操纵体育竞赛采取分类规制思维的基础上,提出了规制裁判员操纵体育竞赛的“枉法裁决模式”,建议在我国刑法上增订“裁判员枉法裁决罪”。

The manipulation of sports competitions by bribed referees leads to the significant impairment of sports competitions and therefore must be regulated by criminal law.However,an analysis of the relevant offenses in the current Chinese Criminal Code shows that there is no more room for the application of the offense of accepting bribes by government officials and the offense of accepting bribes by non-government officials in this field and the offense of fraud applies here only if the case involves a sports bet.Therefore,the provisions of the current Chinese Criminal Code are not sufficient to cover cases of game manipulation by bribed referees and it is necessary to create a new offense against this behavior in the Chinese Criminal Code through criminal legislation.With regard to models of criminal legislation for regulating the manipulation of sports competitions,the"model of unlawful agreement"can be seen in the offenses of sports betting fraud and manipulation of professional sports competitions inserted into the German Criminal Code in 2017.The core of these criminal offenses lies in the illegal agreement achieved through bribery and related to the manipulation of sports competitions.It is sufficient for these criminal offenses to be established if the perpetrator and another person have agreed or attempted to agree on the illegal agreement.Whether the competition has actually been manipulated is irrelevant to the fulfllment of these criminal offenses.This model is accused of an exaggerated preposition of criminal liability.Compared to the model of unlawful agreement in German criminal law,the"model of manipulation"'is mostly seen in the criminal offenses proposed in Chinese literature against the manipulation of sports competitions.The core of these criminal offenses lies in the act of manipulation.Although this model can avoid the exaggerated preposition of criminal liability in the model of unlawful agreement in German criminal law,the fact that the concept of manipulation can hardly be clearly defined leads to the boundlessness of these criminal offenses.Therefore,the application of these offenses could face certain difficulties.Through these offenses,some non-punishable actions that influence competition could be classified as punishable manipulative actions.Because there are deficits in both of the abovementioned models,this essay proposes the"model of perversion of justice"for regulating game manipulation by referees based on classified regulation of the manipulation of sports competitions.The core of the""offense of arbitral perversion of justice"proposed in this article lies in the arbitrator's erroneous decision that is incompatible with the facts and rules of the competition.Therefore,on the one hand,this offense can avoid the excessive pre-positioning of criminal liability in the bribery phase seen in the model of unlawful agreement.On the other hand,it can also avoid the boundlessness of the offense seen in the model of manipulation.