摘要
为利用“囚徒困境”分化瓦解受贿与行贿的同盟,《刑法》第390条第3款规定了行贿罪的特殊从宽情节。近年来,理论界有不少学者主张对特殊从宽情节应持进一步宽和扩大适用的立场。司法实务中,对特殊从宽情节适用的条件总体上把握较为宽松。然而,这种宽和扩大适用导致了明显的负面效应,不但刑法行贿罪规范的严肃性和有效性大打折扣,而且对行贿无底限的宽容,成为现阶段腐败久治难愈的重要原因。《刑法修正案(十二)》加大了对行贿犯罪的惩处力度,在贯彻施行中,应当防止宽和扩大化解释导致特殊从宽情节成为行贿犯罪不当出罪或者减免罪责的通道,回归刑法设定该情节的初衷,在法律规定的范围内,对特殊从宽情节适用条件作符合文义和立法目的的解释,并将为相关案件的查处提供实质性帮助作为适用特殊从宽情节的关键,以体现当下“受贿行贿一起查”和宽严相济的刑事政策要求。
Article 390 Paragraph 3 of the Criminal Law stipulates that:“A briber who voluntarily confesses to his or her conduct of offering bribes before being prosecuted may be given a lighter or mitigated punishment.If the crime is relatively minor,and the briber plays a crucial role in the breakthrough made during investigation or uncovering of a major case or has any major meritorious performance,the briber may be given a mitigated punishment or be exempt from punishment.”This provision is referred to as the provision on special mitigating circumstances for the crime of bribery.There have always been controversies regarding the legitimacy and abolition of special mitigating circumstances,resulting in two different positions on judicial application:expansion and restriction.The former believes that due to the strong secretive characteristic of the crime and the difficulty in obtaining evidence,the special mitigating circumstances of bribery crimes should be expanded in scope and the extent of leniency should be increased.The latter believes that the role of special leniency should not be overestimated.Over the years,leniency towards bribe-givers has not produced the effect of curbing bribery crimes.On the contrary,excessive leniency towards bribery crimes may encourage bribe-givers to find ways to“hunt”public officials.This article argues that expanding the application of special mitigating circumstances for bribery crimes has significant negative effects.It not only reduces public awareness of the harmfulness of bribery but also excessively accommodates bribers without principle or bottom line.The reduction of criminal costs will inevitably lead to the increase in bribery crimes,and may also promote the trend of excessive reliance on oral evidence such as confessions in judicial practice.However,there is no legal basis for excessively limiting the application of these circumstances.Judicial organs should adopt a strict application stance towards special mitigating circumstances.Strict application does not mean restricting the application.Rather,it means that judicial organs should return to the original intention of criminal law to establish this circumstance,and take whether special mitigating circumstances can substantively assist the investigation and handling of relevant cases as a key condition for their application and interpret the relevant conditions of application plainly,so that they are applied where applicable and in a justifiable manner.Among them,“before being prosecuted”should be understood as“before a case is filed for investigation by a supervisory authority”;“voluntary confession”should reflect the briber's initiative in the confession;and“breakthrough made during investigation”should refer to the decisive role played by the briber's active confession in the breakthrough in the investigation of the case.In cases where special mitigating circumstances exist,the magnitude of leniency should be considered comprehensively to avoid arbitrariness.
出处
《环球法律评论》
CSSCI
北大核心
2024年第5期39-55,共17页
Global Law Review
基金
2020年度国家社会科学基金项目“监察法与刑法衔接问题研究”(20BFX056)的研究成果。
