淺析貪污受賄犯罪的量刑數(shù)額與情節(jié)
發(fā)布時間：2018-10-19 12:15
【摘要】：黨的十八大以來,“全面建成小康社會、全面深化改革、全面依法治國、全面從嚴治黨”成為時代最強音。在重拳反腐的情況下,法律也隨著時代的變化不斷適應(yīng)現(xiàn)在社會的要求�！缎谭ㄐ拚�(九)》(以下簡稱《修九》)對于貪污犯罪的刑罰制度進行了很大的創(chuàng)新,改變了以往以數(shù)額為中心的模式,沒有對具體數(shù)額進行規(guī)定,更加偏向情節(jié)的天平。我相信這對今后改革的推進是一個良好的基礎(chǔ)。隨后又頒布了《關(guān)于辦理貪污賄賂刑事案件適用法律若干問題的解釋》(以下簡稱《解釋》),對數(shù)額與情節(jié)作出了具體的解釋。在以往的實踐中,數(shù)額作為確定量刑檔次的最主要指標,存在一些問題,最明顯的就是在數(shù)額達到十萬元以后,犯罪的單位成本不升反降,往往出現(xiàn)貪污幾十萬與幾百萬沒有任何區(qū)別這種不合理的現(xiàn)象。另外,從貪污賄賂犯罪的社會危害性方面來看,其侵害的法益首先是職務(wù)行為的不可交易性,其次才是對于公私財產(chǎn)的侵犯,將數(shù)額作為最重要的處罰依據(jù)顯得有些本末倒置。本文對于貪污受賄犯罪數(shù)額與情節(jié)的現(xiàn)行規(guī)定進行了介紹,并且列出了《修九》和《解釋》修改的內(nèi)容及其積極意義,并提出現(xiàn)行規(guī)定存在的一些不足,根據(jù)不足提出自己的建議。我建議貪污受賄犯罪應(yīng)提升情節(jié)在定罪量刑中的作用,將數(shù)額也作為量刑情節(jié)的一部分,通過與其他情節(jié)相結(jié)合來適應(yīng)不斷變化發(fā)展的現(xiàn)實社會;不設(shè)置起刑點,將犯罪數(shù)額與量刑數(shù)額合并為犯罪數(shù)額,只要有相應(yīng)的出現(xiàn)犯罪數(shù)額,哪怕只有一卷紙,也要規(guī)定為犯罪;與防微杜漸式的刑罰起刑點相應(yīng)的減輕刑罰嚴厲性,比如采取更具有針對性的身份刑,終身不得進入公務(wù)員隊伍或者十年內(nèi)不得提升職務(wù)級別等刑罰措施。這種模式對于公權(quán)力的合理運用和官員自身的成長都是很有益處的。我相信通過這些變革,一定可以更有效的防治貪腐行為。
[Abstract]:Since the 18th National Congress of the Party, "building a well-off society in an all-round way, deepening reform in an all-round way, governing the country according to law, and administering the Party strictly" have become the strongest tone of the times. In the case of heavy fist anti-corruption, the law has also constantly adapted to the needs of the present society with the changes of the times. The Criminal Law Amendment (9) > (hereinafter referred to as "amending 9") has made great innovations in the criminal penalty system for corruption crimes. Changed the previous model of quantity-centered, no specific amount of provisions, more inclined to the plot balance. I believe this will be a good basis for further reform in the future. After that, the author promulgated the explanation of some problems of applicable Law in handling Criminal cases of Corruption and bribery (hereinafter referred to as "explanation"), and made a concrete explanation of the amount and circumstances. In previous practice, the amount as the most important indicator for determining the level of sentencing, there are some problems. The most obvious problem is that after the amount has reached 100,000 yuan, the unit cost of the crime will not rise but decrease. It is often unreasonable to see that there is no distinction between hundreds of thousands and millions of corruption. In addition, from the point of view of the social harmfulness of the crime of corruption and bribery, the legal interest of its infringement is firstly the non-tradable nature of the duty behavior, and secondly, the infringement of the public and private property, the amount of which is regarded as the most important punishment basis, seems to put the cart before the horse. This paper introduces the current provisions on the amount and circumstances of the crime of corruption and bribery, and lists the contents and positive significance of the amendments to "revision of Nine" and "explanation", and points out some shortcomings of the existing provisions. Make your own suggestions according to your shortcomings. I suggest that the crime of corruption and bribery should enhance the role of the circumstances in the conviction and sentencing, take the amount as part of the circumstances of sentencing, adapt to the changing and developing reality of society by combining with other circumstances, and do not set up penalty points. If the amount of crime and the amount of sentencing are combined into the amount of crime, as long as there is a corresponding amount of crime, even if there is only one roll of paper, it should also be stipulated as a crime. For example, more targeted identity punishment, lifetime not to enter the civil service or 10 years of promotion and other penalties. This model is beneficial to the rational use of public power and the growth of officials themselves. I believe that through these changes, we will be able to prevent corruption more effectively.
【學位授予單位】：中國社會科學院研究生院
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D924.392
[Abstract]:Since the 18th National Congress of the Party, "building a well-off society in an all-round way, deepening reform in an all-round way, governing the country according to law, and administering the Party strictly" have become the strongest tone of the times. In the case of heavy fist anti-corruption, the law has also constantly adapted to the needs of the present society with the changes of the times. The Criminal Law Amendment (9) > (hereinafter referred to as "amending 9") has made great innovations in the criminal penalty system for corruption crimes. Changed the previous model of quantity-centered, no specific amount of provisions, more inclined to the plot balance. I believe this will be a good basis for further reform in the future. After that, the author promulgated the explanation of some problems of applicable Law in handling Criminal cases of Corruption and bribery (hereinafter referred to as "explanation"), and made a concrete explanation of the amount and circumstances. In previous practice, the amount as the most important indicator for determining the level of sentencing, there are some problems. The most obvious problem is that after the amount has reached 100,000 yuan, the unit cost of the crime will not rise but decrease. It is often unreasonable to see that there is no distinction between hundreds of thousands and millions of corruption. In addition, from the point of view of the social harmfulness of the crime of corruption and bribery, the legal interest of its infringement is firstly the non-tradable nature of the duty behavior, and secondly, the infringement of the public and private property, the amount of which is regarded as the most important punishment basis, seems to put the cart before the horse. This paper introduces the current provisions on the amount and circumstances of the crime of corruption and bribery, and lists the contents and positive significance of the amendments to "revision of Nine" and "explanation", and points out some shortcomings of the existing provisions. Make your own suggestions according to your shortcomings. I suggest that the crime of corruption and bribery should enhance the role of the circumstances in the conviction and sentencing, take the amount as part of the circumstances of sentencing, adapt to the changing and developing reality of society by combining with other circumstances, and do not set up penalty points. If the amount of crime and the amount of sentencing are combined into the amount of crime, as long as there is a corresponding amount of crime, even if there is only one roll of paper, it should also be stipulated as a crime. For example, more targeted identity punishment, lifetime not to enter the civil service or 10 years of promotion and other penalties. This model is beneficial to the rational use of public power and the growth of officials themselves. I believe that through these changes, we will be able to prevent corruption more effectively.
【學位授予單位】：中國社會科學院研究生院
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D924.392
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1 郭國順,郭欣,軍偉;貪污受賄犯罪潛黑數(shù)的預(yù)測研究[J];中國刑事法雜志;2002年04期
2 yぱ，
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