從單一正犯視角看賄賂罪中的共同犯罪疑難問題

Consider the Difficulties of Joint Crime in Bribery from the Perspective of Unitary Principal Offender

我國刑法在賄賂罪中規定了利用影響力受賄罪和介紹賄賂罪，這從一個側面表明我國刑法採取的是單一正犯體系，因而應從單一正犯的視角來看賄賂罪中的共同犯罪問題。按單一正犯的解釋論，能避免出現區分正犯與共犯的體制帶來的對受賄罪的共同參與者處罰輕重失當、對受賄罪的教唆未遂無法定罪處罰以及對有國家工作人員身份者教唆無此身份者實施受賄罪難以準確定性的問題；還能更好地解決特定關係人與國家工作人員共同受賄的定性以及介紹賄賂罪與行賄罪、受賄罪共犯的區分等疑難問題。

The crimes of 'taking bribe by influence' and 'introducing bribe' in Chinese Criminal Law indicate that what China has adopted is the unitary principal offender system. As a result, perspective of unitary principal offender should be taken to view the issues of joint crime in bribery. According to interpretative theory of unitary principal offender, several predicaments caused by differentiation between principal and accomplice can be avoided. Such as improper punishment to joint participants in crime of taking bribe, incapable of convicting and punishing the attempted instigation in taking bribe, and difficulties in exactly confirming the nature of action in which people with the identity of state functionary instigate those who are not to take bribe. In addition, problems like the nature of jointly taking bribe by state officials and special related person, as well as discrimination between introducing bribe and accomplice in crimes of offering or taking bribes can also be better resolved.