论贿赂犯罪的保护法益以新公共服务范式的视角切入

On the Protected Legal Interests in Bribery CrimesA Perspective from New Public Service Paradigm

  • 摘要: 立足于新公共服务范式,贿赂犯罪的保护法益应当为职务行为的公正性。其中公正兼具行政结果公正与行政过程公正两方面的含义:行政结果公正要求职务行为能够实现公共利益,满足公民对于公共服务的需要;行政过程公正则意味着国家工作人员积极履行提供公共服务的职责,并遵守正当的行政程序。职务行为则不仅包括正在实施的职务行为,而且包括已经实施和将要实施的职务行为。这种观点不仅可以合理解释为何成立普通受贿仅要求行为人为他人谋取利益,而成立斡旋受贿与利用影响力受贿要求行为人为他人谋取不正当利益;而且可以为缺乏事先约定的事后受财与感情投资型受财的可罚性提供说明。

     

    Abstract: Based on the new public service paradigm, the protected legal interests in bribery crimes should be the fairness of the state functionary’s duty. The fairness here has both the meaning of administrative result justice and administrative process justice: The administrative result justice requires that the duty behavior can realize the public interests and meet the needs of citizens for public services; The administrative process justice means that the state functionaries actively perform public service duties and follow due administrative procedures. The duty behavior includes not only the duty act being carried out, but also the duty act that has been carried out and will be carried out. This view can not only reasonably explain why the establishment of ordinary bribery only requires the perpetrator to seek benefits for others, while the establishment of mediatory-bribe and the bribery by the influence requires the perpetrator to seek illegitimate benefits for others; It can also provide a description of the punishment such acts as accepting bribery after the performance of duty without prior agreement and receiving bribes given as investment in human relations.

     

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