摘要
利用影响力受贿罪在增设之初所确立的立法意义,与其实施五年多以来所遭遇的现实困境之间存在明显的不协调。由于该罪偏重于对受贿行为主体的扩充,而并未将现实中其他社会危害性相当甚或更加严重而其他法律却无法约束的受贿行为纳入刑法规制的范畴,以致于产生了"罚轻不罚重"甚或"同行不罚"等不合理现象。摆脱这些困境的出路在于将"其他密切关系"纳入利用影响力受贿罪的构成要件,将利用影响力受贿罪的对向行为也应当规定为犯罪,并设立利用对公司、企业或其他单位的工作人员的影响力受贿罪。
There is an obvious gap between the intended legislative purposes of the establishment of the offence of extorting and accepting bribes by taking advantage of the influence of a state functionary and the practical difficulties encountered in its five -year- plus implementation. Due to the fact that this criminal offence lays emphasis on the extension of the scope of recipients of bribes while failing to incorporate into criminal liabilities acts of bribery of no less social harmfulness or of even more serious social harmfulness, a series of unreasonable phenomena have occurred, such as ＇ imposing heavy punishment on minor offences but lenient punishment on serious ones＇ , ‘ treating peer perpetrators with impunity＇ , et cetera. The way out of such dilemma, as is proposed, lies in incorporating into the constituent crime elements situations where the ＇ requesters of other close relationship with a state functionary＇ who, through that state functionary＇ s performance of duties or by taking advantage of that state functionary＇ s power of office or position, seeks illegitimate benefits. Meanwhile, the misbehaviors thus incurred as a result of taking bribes by making use of one＇ s influence should also be established as criminal offences. In addition, the crime of taking bribes by making use of one＇ s influence should also extend to the realm of companies, enterprises or any other organizations whose staff members breach the stated laws.
出处
《南阳师范学院学报》
CAS
2015年第1期10-14,共5页
Journal of Nanyang Normal University
基金
上海市高校一流学科(华东政法大学刑法学)建设计划项目的阶段性成果
关键词
利用影响力受贿
腐败
对向犯
密切关系人
crime of taking bribes by making use of one＇ s influence
corruption
Begegnungsdelikte
close relationship between people
