巨額財(cái)產(chǎn)來源不明罪司法適用研究
發(fā)布時間：2018-12-15 08:17
【摘要】：新世紀(jì)新階段,我國改革開放取得了重大成果,經(jīng)濟(jì)社會發(fā)展水平取得了重大提升,人民生活質(zhì)量取得了重大提高。與此同時,腐敗問題在我國的政治生活和人民群眾的社會生活中日益凸顯,并有不斷蔓延趨勢。反腐敗自然也成為我國黨和政府的一項(xiàng)十分重要的歷史使命。為了展示懲治腐敗的決心,我國立法機(jī)關(guān)在飽受爭議中權(quán)衡利弊創(chuàng)設(shè)了巨額財(cái)產(chǎn)來源不明罪。不能否認(rèn),巨額財(cái)產(chǎn)來源不明罪入刑近三十年來,大量非法擁有巨額財(cái)產(chǎn)而檢察機(jī)關(guān)卻無法查證屬實(shí)試圖逃避法律制裁的腐敗分子被繩之以法。然而,在司法實(shí)踐中,本罪的角色定位更多的是貪污罪和受賄罪的替代性罪名,實(shí)現(xiàn)的只是它的工具價值。與此同時,我們更加清晰地認(rèn)識到該罪在司法適用過程中仍然存在很多的爭議,輔之相應(yīng)的配套制度更是當(dāng)務(wù)之急,這一切都值得我們深入研究。 全文除了引言和結(jié)論外,共分為三個部分： 本文第一部分首先分析了巨額財(cái)產(chǎn)來源不明罪的立法沿革,通過詳細(xì)介紹1988年《補(bǔ)充規(guī)定》、1997年《刑法》和2009年《刑法修正案(七)》三個法律文件的內(nèi)容,熟悉了本罪的歷史發(fā)展過程,緊接著從正反兩方面深入闡述了本罪的立法價值,全面分析了肯定說和否定說的觀點(diǎn)和理由,最后提出了筆者對本罪的觀點(diǎn)和理由。 本文第二部分對本罪在司法適用中較有爭議的犯罪主體(離職的國家工作人員是否可以構(gòu)成本罪犯罪主體)、證明責(zé)任(控方承擔(dān)說、證明責(zé)任倒置說、共同承擔(dān)說和辯護(hù)權(quán)說的理論爭議)、共同犯罪(肯定說和否定說的理論爭議)、犯罪形態(tài)(本罪的既遂形態(tài)和停止形態(tài))、自首問題(肯定說和否定說的理論爭議)等基本問題進(jìn)行了較為詳細(xì)的研究分析和深層次的理論探討,并在司法適用中提出了筆者獨(dú)立的觀點(diǎn)和理由。 本文第三部分認(rèn)為僅僅依靠巨額財(cái)產(chǎn)來源不明罪入刑不能徹底掌握國家工作人員的財(cái)產(chǎn)狀況,更不能徹底懲治腐敗分子,應(yīng)當(dāng)在借鑒國外經(jīng)驗(yàn)的基礎(chǔ)上,結(jié)合我國實(shí)際情況,建立完善的財(cái)產(chǎn)申報(bào)制度作為配套制度,充分實(shí)現(xiàn)巨額財(cái)產(chǎn)來源不明罪的獨(dú)立價值。希望本文的研究成果能夠在司法適用中得到認(rèn)可,能夠在法治反腐的道路上起到 一定的推動作用。
[Abstract]:In the new century and new stage, great achievements have been made in China's reform and opening up, the level of economic and social development has been greatly improved, and the quality of life of the people has been greatly improved. At the same time, the problem of corruption is increasingly prominent in our country's political life and people's social life, and has a tendency of spreading. Anti-corruption has naturally become a very important historical mission of our party and government. In order to show the determination to punish corruption, the legislature of our country has created the crime of huge amount of property from unknown sources. It cannot be denied that in the past 30 years since the criminal conviction for the crime of huge amounts of property of unknown origin, a large number of corrupt elements who illegally owned huge amounts of property but could not be verified by the procuratorial organs were brought to justice for trying to evade legal sanctions. However, in judicial practice, the role of this crime is more the crime of corruption and bribery of the alternative charges, only to achieve its instrumental value. At the same time, we recognize more clearly that the crime in the process of judicial application still exists a lot of controversy, supplemented by the corresponding supporting system is the top priority, all of which are worthy of our in-depth study. In addition to the introduction and conclusion, the full text is divided into three parts: the first part of this paper first analyzes the legislative evolution of the crime of huge amounts of property from unknown sources, through a detailed introduction to the 1988 Supplementary provisions, The contents of the three legal documents, 1997 Criminal Law and 2009 Criminal Law Amendment (7), are familiar with the historical development process of this crime, and then the legislative value of the crime is expounded from both positive and negative aspects. This paper analyzes the views and reasons of affirmation and negation, and finally puts forward the author's views and reasons for this crime. The second part of this article is about the subject of the crime in the application of justice (whether the departing national staff can constitute the subject of the crime), the burden of proof (the prosecution bears the theory, the burden of proof is reversed). The theory of co-responsibility and the theory of the right to defense), the theory of joint crime (the theoretical dispute between positive and negative), the form of crime (the completed form of the crime and the form of cessation), In this paper, the author makes a detailed study and analysis of the basic problems such as surrender (the theoretical dispute between affirmation and negation), and puts forward the author's independent viewpoints and reasons in the judicial application. In the third part of this paper, the author thinks that only relying on the crime of huge amount of property of unknown origin can not thoroughly grasp the property situation of the state functionary, let alone punish the corrupt elements thoroughly, should draw lessons from the experience of foreign countries, combined with the actual situation of our country. The establishment of a perfect property declaration system as a supporting system to fully realize the independent value of the crime of huge property of unknown origin. I hope the research results of this paper can be recognized in the judicial application, and can play a role in promoting the rule of law anti-corruption road.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D924.392
本文編號：2380325
[Abstract]:In the new century and new stage, great achievements have been made in China's reform and opening up, the level of economic and social development has been greatly improved, and the quality of life of the people has been greatly improved. At the same time, the problem of corruption is increasingly prominent in our country's political life and people's social life, and has a tendency of spreading. Anti-corruption has naturally become a very important historical mission of our party and government. In order to show the determination to punish corruption, the legislature of our country has created the crime of huge amount of property from unknown sources. It cannot be denied that in the past 30 years since the criminal conviction for the crime of huge amounts of property of unknown origin, a large number of corrupt elements who illegally owned huge amounts of property but could not be verified by the procuratorial organs were brought to justice for trying to evade legal sanctions. However, in judicial practice, the role of this crime is more the crime of corruption and bribery of the alternative charges, only to achieve its instrumental value. At the same time, we recognize more clearly that the crime in the process of judicial application still exists a lot of controversy, supplemented by the corresponding supporting system is the top priority, all of which are worthy of our in-depth study. In addition to the introduction and conclusion, the full text is divided into three parts: the first part of this paper first analyzes the legislative evolution of the crime of huge amounts of property from unknown sources, through a detailed introduction to the 1988 Supplementary provisions, The contents of the three legal documents, 1997 Criminal Law and 2009 Criminal Law Amendment (7), are familiar with the historical development process of this crime, and then the legislative value of the crime is expounded from both positive and negative aspects. This paper analyzes the views and reasons of affirmation and negation, and finally puts forward the author's views and reasons for this crime. The second part of this article is about the subject of the crime in the application of justice (whether the departing national staff can constitute the subject of the crime), the burden of proof (the prosecution bears the theory, the burden of proof is reversed). The theory of co-responsibility and the theory of the right to defense), the theory of joint crime (the theoretical dispute between positive and negative), the form of crime (the completed form of the crime and the form of cessation), In this paper, the author makes a detailed study and analysis of the basic problems such as surrender (the theoretical dispute between affirmation and negation), and puts forward the author's independent viewpoints and reasons in the judicial application. In the third part of this paper, the author thinks that only relying on the crime of huge amount of property of unknown origin can not thoroughly grasp the property situation of the state functionary, let alone punish the corrupt elements thoroughly, should draw lessons from the experience of foreign countries, combined with the actual situation of our country. The establishment of a perfect property declaration system as a supporting system to fully realize the independent value of the crime of huge property of unknown origin. I hope the research results of this paper can be recognized in the judicial application, and can play a role in promoting the rule of law anti-corruption road.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D924.392
【參考文獻(xiàn)】
相關(guān)期刊論文 前6條
1 何承斌;職務(wù)犯罪的共犯形態(tài)論[J];重慶大學(xué)學(xué)報(bào)(社會科學(xué)版);2003年05期
2 齊文遠(yuǎn),郭澤強(qiáng);關(guān)于認(rèn)定和懲處巨額財(cái)產(chǎn)來源不明罪的幾點(diǎn)思考[J];湖北行政學(xué)院學(xué)報(bào);2002年01期
3 向朝陽,肖怡;對“巨額財(cái)產(chǎn)來源不明罪”的實(shí)然性思考[J];人民檢察;2002年04期
4 鮑遂獻(xiàn);;非法所得罪帶來的理論困惑[J];現(xiàn)代法學(xué);1989年02期
5 李寶岳,吳光升;巨額財(cái)產(chǎn)來源不明罪及其證明責(zé)任研究[J];政法論壇;1999年06期
6 鮑遂獻(xiàn);;論拒不說明巨額財(cái)產(chǎn)真實(shí)來源罪[J];中國法學(xué);1990年06期
，本文編號：2380325
本文鏈接：http://sikaile.net/falvlunwen/xingfalunwen/2380325.html
教材專著
