論受賄罪定量要素的“嵌入式結構”
發(fā)布時間：2018-08-31 20:01
【摘要】：就《貪污賄賂解釋》,理論與實務已習慣性地稱確立了受賄罪"數額+情節(jié)"的結構。然而,因疏于對數額與情節(jié)各自功能、各自定位及結合方式等的研究,導致這一結構無法有效發(fā)揮法條釋讀功能。在純數額型中數額可被抹平處理之外,有標志性的意義是,該司法解釋確立了數額與情節(jié)結合的"嵌入式結構"。這一結構中的情節(jié)被同一化、均等化看待,于三檔法定刑幅度共用。然八種情節(jié)之所以可和特定的彈性數額區(qū)間結合來表達情節(jié)較重、嚴重和特別嚴重,關鍵是它們有不同"質"或處于不同"體"中。此結構隱含的原理,有助于合理確定"遭受損失"、"多次索賄"等的含義,有助于解決情節(jié)競合等問題。當然,該結構在范圍上是受限的,判處無期徒刑等案件不宜適用。
[Abstract]:With regard to the explanation of Corruption and bribery, the theory and practice have habitually established the structure of the "amount plot" of the crime of accepting bribes. However, due to the lack of research on the function of amount and plot, their respective positioning and combination, this structure can not effectively play the function of interpretation of the rule of law. Apart from the fact that the amount can be equalized in the pure amount type, it is significant that the judicial interpretation establishes an "embedded structure" which combines the amount with the plot. The plot in this structure is identical and equalized and shared in the legal range of three files. However, the eight circumstances can be combined with the specific elastic amount interval to express the serious and especially serious circumstances, the key is that they have different "quality" or in different "body". The implicit principle of this structure is helpful to determine the meaning of "suffered losses" and "multiple requests for bribes", and to solve the problem of competing circumstances. Of course, the structure is limited in scope, life imprisonment and other cases are not applicable.
【作者單位】： 西南林業(yè)大學文法學院;
【分類號】：D924.3
，
本文編號：2216014
[Abstract]:With regard to the explanation of Corruption and bribery, the theory and practice have habitually established the structure of the "amount plot" of the crime of accepting bribes. However, due to the lack of research on the function of amount and plot, their respective positioning and combination, this structure can not effectively play the function of interpretation of the rule of law. Apart from the fact that the amount can be equalized in the pure amount type, it is significant that the judicial interpretation establishes an "embedded structure" which combines the amount with the plot. The plot in this structure is identical and equalized and shared in the legal range of three files. However, the eight circumstances can be combined with the specific elastic amount interval to express the serious and especially serious circumstances, the key is that they have different "quality" or in different "body". The implicit principle of this structure is helpful to determine the meaning of "suffered losses" and "multiple requests for bribes", and to solve the problem of competing circumstances. Of course, the structure is limited in scope, life imprisonment and other cases are not applicable.
【作者單位】： 西南林業(yè)大學文法學院;
【分類號】：D924.3
，
本文編號：2216014
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