體壇反腐背景下增設操縱競技體育比賽罪研究

Research on Adding the Crime of Manipulating Competitive Sports Competitions under the Background of Anti-corruption in the Sports World

黨的十八大以來，我國確立了體育強國建設戰略。競技體育具有特殊的引領和示範功能，在體育強國建設中發揮著重要作用。我國體育強國建設面臨諸多困境，操縱競技體育比賽及與其相關的賄賂、賭博、洗錢等違法犯罪行為是制約體育強國建設的“毒瘤”需要完善相應機制予以清除。《體育法》禁止操縱體育比賽行為並規定了附屬刑法規範，但《刑法》中沒有相應規定，導致行刑銜接不暢。以現行罪名懲治操縱競技體育比賽相關行為與罪刑法定原則有衝突，也偏離了操縱比賽這一系統性體育犯罪的中心。在《刑法》中增設操縱競技體育比賽罪是推進體育強國建設的重要刑法保障，建議在《刑法》第223條後面增加一條作為“第223條之一”，罪刑規範暫定為“在國內、國際重大體育競賽中，體育主管部門人員、體育組織人員、教練員、裁判員、運動員以及其他體育從業人員違反公平競爭原則，對比賽過程進行不正當的支配、控制，情節嚴重的……；情節特別嚴重的，……”。

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,……''.