A Study on the Standards for Conviction and Sentencing of Crimes of Embezzlement and Bribery——Considerations on the basis of Amendment( Ⅸ) to the Criminal Law
- 法学院－已发表论文 
尽管《刑法修正案(九)》确立了"数额+情节"的贪污受贿犯罪定罪量刑标准,但却刻意回避了为受贿罪设置独立定罪量刑标准的重要议题,并留下诸多悬而未决的司法适用难题。贪污受贿犯罪定罪量刑标准之构建,应以贪污、受贿罪的法益侵害本质为根据,适当兼顾经济发展变化和反腐政策需求,并以域外共通性立法经验为参考而做出。基于此,应当分别构建"数额为主、情节为辅"的贪污罪定罪量刑标准和"以情节为中心"的受贿罪定罪量刑标准,并在维持现有入罪数额标准不变之基础上,以一定经济指数为参照,合理、科学确立适当反映经济发展变化的量刑动态数额标准。Although in Amendment( Ⅸ) to the Criminal Law,standards for the conviction and sentencing of crimes of embezzlement and bribery have been established as judging by " amount + seriousness",the key topic about setting up an independent conviction and sentencing standard for bribery is deliberately ignored,which leaves many problems unresolved in terms of judicial application. In fact,the establishment of the standards for conviction and sentencing of crimes of embezzlement and bribery should fully take into account the content of legal interests against embezzlement and bribery,the appropriate balance between economic development and needs of anti- corruption policy,and the common experiences of foreign legislation. Based on this,standards by " judging mainly by amount,supplemented by seriousness" and standards by " judging mainly by seriousness" should be constructed separately,while keeping the existing standards concerning the amount of bribes and taking into reference some economic index,so as to build up a flexible standards of sum for sentencing that can reasonably and scientifically reflect the appropriate changes and development of economy.