行贿罪从重情节的法律适用问题研究——基于《刑法修正案(十二)》的解读

Research on the Legal Application of Aggravating Circumstances for Bribery Crime:Interpretation Based on the Criminal Law Amendment(Ⅻ)

为响应“坚持受贿行贿一起查”反腐败政策方针,理论上出现了“行贿与受贿并重”的惩治主张,与司法实践中“重受贿轻行贿”的传统立场存在激烈争论。行贿与受贿尽管具有对合性,但各自的不法与责任程度是独立的,政策上强调要加大惩处力度,并不意味着必须全面依照受贿罪的处罚作为参考坐标轴进行调整,行贿行为的刑事可罚性有其需要独立判断的内容。《刑法修正案(十二)》对行贿罪处罚规定的三处修改,贯彻和体现了宽严相济刑事政策的要求。其中,新增设的七种从重情节在司法实践中可能面临多种复杂情形,为了减少实务上的争议,必须准确把握立法修改的精神,在宽严相济刑事政策的指导下进行解释与适用。充分运用本次立法修改为分层次处罚建构的“弹性”空间,推动行贿罪的量刑符合罪刑相适应原则。

In response to the anti-corruption policy guideline of"insisting on investigating both bribe offering and bribe accepting",the idea of penalizing both bribe offering and bribe accepting has emerged in theory,and there is a heated debate with the traditional position of"emphasizing bribe accepting over bribe offering"in judicial practice.The traditional position of"emphasizing bribe accepting over bribe offering"in judicial practice is hotly contested.Bribe offering and bribe accepting,despite their compatibility,are independent of their respective degrees of wrongdoing and responsibility,and the policy emphasis on increasing penalties does not mean that they must be adjusted in full accordance with the penalty for the offence of bribe accepting as the axis of reference,and that the criminal punishability of bribe offering has its own content that needs to be judged independently.The three changes to the penalty provisions of the Criminal Law Amendment(Ⅻ)on the offence of bribe offering implement and reflect the requirements of the criminal policy of balancing leniency with severity.Among them,the seven newly added aggravating circumstances may face a variety of complex situations in judicial practice.In order to minimize disputes in practice,it is necessary to accurately grasp the spirit of the legislative amendments and interpret and apply them under the guidance of the criminal policy of mutual leniency.We should make full use of the"flexible"space constructed by this legislative amendment for the hierarchical punishment,and promote the sentencing of bribe offering in line with the principle of appro priateness of crime and punishment.