摘要
党的十八大以来,我国确立了体育强国建设战略。竞技体育具有特殊的引领和示范功能,在体育强国建设中发挥着重要作用。我国体育强国建设面临诸多困境,操纵竞技体育比赛及与其相关的贿赂、赌博、洗钱等违法犯罪行为是制约体育强国建设的“毒瘤”,需要完善相应机制予以清除。《体育法》禁止操纵体育比赛行为并规定了附属刑法规范,但《刑法》中没有相应规定,导致行刑衔接不畅。以现行罪名惩治操纵竞技体育比赛相关行为与罪刑法定原则有冲突,也偏离了操纵比赛这一系统性体育犯罪的中心。在《刑法》中增设操纵竞技体育比赛罪是推进体育强国建设的重要刑法保障,建议在《刑法》第223条后面增加一条作为“第223条之一”,罪刑规范暂定为“在国内、国际重大体育竞赛中,体育主管部门人员、体育组织人员、教练员、裁判员、运动员以及其他体育从业人员违反公平竞争原则,对比赛过程进行不正当的支配、控制,情节严重的……;情节特别严重的,……”。
Since the 18th National Congress of the CPC,our country has established the strategy of building a leading sporting nation,which is an integral part of Chinese modernization.The construction of a leading sporting nation includes competitive sports and mass sports,with competitive sports playing a crucial role in leading and demonstrating within the framework of this strategy.However,there are many challenges in the implementation process.Crimes such as bribery,gambling and money laundering are the cancers " that restrict construction.It requires the improvement of corresponding mechanisms for its elimination.Due to the lack of a rigorous legal regulatory system in our country,the phenomenon of manipulating competitive sports competitions is very serious.It is characterized by repeated prohibitions,wide coverage,huge amount of money involved,common systematic cases,and extending to emerging fields.The manipulation of competitive sports competitions disrupts the order of sports management,erodes the foundation of building a leading sporting nation,and urgently needs attention and resolution.Although China's " Sports Law" prohibits the manipulation of sports competitions and stipulates subsidiary criminal law norms,the absence of corresponding provisions in the " Criminal Law" leads to a lack of smooth execution in criminal enforcement.The current criminal charges for punishing relevant actions in the manipulation of competitive sports competitions conflict with the principles of legality and deviate from the central focus of systematic sports crimes involving match-fixing.Therefore,it is necessary to improve China's sports criminal law legislation.To combat illegal activities centered around manipulating competitive sports competitions,the international community has developed relevant conventions,and foreign countries have enacted related sports laws,including crimes related to sports fraud in criminal law.These can serve as a reference for improving China's criminal legislation.In the context of the dual background of building a leading sporting nation and developing the sports industry,the manipulation of competitive sports competitions in the expected sports criminal law system violates multiple legal interests and meets the substantive conditions for criminal punishment.Manipulating competitive sports competitions infringes on three levels of legal interests:at the macro level,it degrades the national image and damages national spirit;at the meso level,it disrupts the national management order of competitive sports;and at the micro level,it infringes on the legitimate interests of relevant entities.Therefore,the act of manipulating competitive sports competitions has serious social harm and normative significance in terms of legal interest infringement,justifying the necessity and legitimacy of establishing the crime of manipulating competitive sports competitions in " Criminal Law".Adding the crime of manipulating competitive sports competitions to the criminal law is an important guarantee for promoting the construction of a leading sporting nation.It can bridge the 112th and 119th articles of the " Sports Law" and connect the " Sports Law" with the " Criminal Law".We suggest adding a provision after Article 223 of the " Criminal Law," tentatively formulated as "Article 223-1," with the crime and punishment stipulated as follows:" In major domestic and international sports competitions,personnel from sports authorities,sports organizations,coaches,referees,athletes,and other sports professionals who violate the principle of fair competition,unduly dominate or control the competition process,with serious consequences……;in cases of particularly serious nature,……".
出处
《当代法学》
CSSCI
北大核心
2024年第1期95-107,共13页
Contemporary Law Review
基金
国家社科基金重大项目“中国特色国家监察学学科体系建设研究”(19ZDA134)的阶段性成果。
