行贿罪与受贿罪的关系

The Relationship Between the Crime of Offering Bribes and the Crime of Taking Bribes

大多数国家刑法规定的行贿罪与受贿罪都具有明显的对应关系。我国刑法中的行贿罪与受贿罪的关系则具有双重属性,即二者既可能是对向犯,也可能是独立犯罪,但不是通常的共同犯罪关系,不可能按共同犯罪的一般规定处理。在对向关系的场合,不能将受贿罪的对向行为认定为受贿罪的共犯,也不能将行贿罪的对向行为认定为行贿罪的共犯。由于对向犯只要求存在两个以上行为人的相互对向的行为,而非双方行为均构成犯罪,所以,只要国家工作人员获得的是职务行为的不正当报酬,即使双方存在真实的买卖关系,也不影响国家工作人员的行为构成受贿罪;即使给予财物的人没有行贿的意思,甚至因为上当受骗给予了财物,或者给予财物的人属于正当支出乃至因为支出而获利,也不意味着对方的行为不成立受贿罪。由于行贿罪与受贿罪并非通常的共同犯罪关系,故二者的既遂标准并不相同,不能由一方是否既遂决定另一方是否既遂。

Under Chinese criminal law,a state functionary who solicits or accepts property for the legitimate interests of others(simply taking bribes)is guilty of accepting bribes,but a person who offers property to a state functionary for legitimate interests(simply offering bribes)is not guilty of the crime of offering bribes.Thus,the relationship between the crime of offering bribes and the crime of taking bribes has a dual attribute,that is,they may be symmetrical crimes or independent crimes,but they are not joint crimes in a general way.In cases where a state functionary has accepted bribes offered by a trustee or the two parties have formed an agreement on how to accept bribes,the crime of offering bribes and the crime of taking bribes are symmetrical crimes.Under these circumstances,the acts of both parties are based on the premise that the other party carries out symmetrical acts of bribery crimes.However,this symmetrical structure does not mean that both parties'acts constitute a crime.In cases where a state functionary solicits but does not receive bribes and has not reached an agreement with the other party and in cases where a trustee simply promises to give bribes or offers bribes objectively,but the state functionary does not take or agree to accept such bribes,the crime of offering bribes and the crime of taking bribes are separate and independent crimes,rather than symmetrical crimes.The establishment of symmetrical crimes only requires the existence of two or more actors'symmetrical acts,rather than that all acts involved constitute a crime,nor does it mean that symmetrical crimes are joint crimes.Therefore,as long as a state functionary receives improper remuneration for his act of duty,his act constitutes the crime of taking bribes,even if a real business relationship exists between the involved parties.Even if the other party who offers the property does not have the intention to bribe,or the other party is tricked into offering the property,or the offered property falls within the other party's legitimate expenditure,or the other party even profits from this expenditure,or the other party does not have the intention to bribe,the symmetrical act of the state functionary can still constitute the crime of taking bribes.Since there are circumstances in which the crime of offering bribes and the crime of taking bribes may be independent of each other,neither the establishment of the crime of taking bribes is premised on the giving of property by the other party,nor the establishment of the crime of offering bribes is premised on the acceptance of the concerned property by the state functionary.Since the relationship between the crime of offering bribes and the crime of taking bribes is not that of general joint crimes,the criteria for the accomplishment of each crime involved are different.Therefore,the fact that one party has accomplished his crime does not necessarily mean that the other party has also accomplished his crime.