"Does the gender boodle " should enter punishment? FormerRailway ministryMinisterial Liu Zhijun case, because check just was opposite its " the gender boodles " the clue puts forward to accuse, cause the public opinion attention to this problem once more.
In fact, edit from 1996 " criminal law " case, "The gender boodles " this controversy that enters punishment, lasted 17 years at least.
Come 17 years, although quality of officer advantageous position trades,the case is sent hair, high repeatedly, social all circles appeals legislative sanction ceaselessly " the gender boodles " , but all previous classics 8 castigatory " criminal law " , did not write all the time " the gender boodles " . Legislature stems from what respect regard, not right " does the gender boodle " employ criminal law " edge tool " ?
To this, zhou Guangquan of scholar offree watch case famous criminal law teachs special report of new capital newspaper.
Accusation " the gender boodles " existence law obstacle
In light of the surface, quality of a series of officer advantageous position such as Liu Zhijun case trade case, having the content that boodles partly is " the gender serves " . Having 3 cases among them is bribery person goes money hire other to be the accused person to offer " the gender serves " . It is the money that bribery person received bribery person character actually, should with taking bribes the blame is found out.
New capital signs up for: Liu Zhijun of minister of former railway ministry case, although " the gender boodles " the clue is very clear, him Liu Zhijun admits, he and Ding Yu exist between the heart " the gender boodles " , power quality trades fact, but no matter be records or front courtyard careful, check just did not put forward to accuse to this. Investigate its reason, be because," does the gender boodle " active still " criminal law " blank spot?
Zhou Guangquan: Active " criminal law " accept without specific provision " the gender boodles " brass faucetmake bribery crime, accordingly, accuse obstacle of law of similar action existence.
Of course, from should like that angle is told, my individual thinks, should trade to be reflectewatch case openerd somewhat on criminal law legislation to power quality, just accord with logic. Because of the backside that power quality trades, it is abuse of influence sell one's own things, influence, social harm sex is great. So what reason, what condition brought about influence sell one's own things, this is not important, important is, power quality trades after causing influence sell one's own things, brought what consequence. Want consequence to be opposite only the public, right the society was caused damage, should punish severely.
New capital signs up for: But abide by " the law is not a blame without proclaimed in writing " principle, if find out Liu Zhijun " the gender boodles " clue, cannot discover OK and applicable clause and charge?
Zhou Guangquan: Our country " criminal law " set take bribes, bribery, introduction boodles 3 kinds of forms, and be the content demarcate of bribery property. But this does not mean an all increases besides property, eliminate to be besides bribery content. Bribery sin is main is not economic crime, however the post commits a crime, its are constitutionally " sell public right, score personal gain " . In light of the surface, quality of a series of officer advantageous position such as Liu Zhijun case trade case, having the content that boodles partly is " the gender serves " , but actually, from now the public report of media looks, having 3 cases among them is bribery person goes money hire other to be the accused person to offer " the gender serves " , it is the money that bribery person received bribery person character actually, accordingly, this kind of case has not belonged to what what say normally " the gender boodles " , take bribes however the person received belongings sex benefit, should with taking bribes the blame is found out.
Legal obstacle comes from level of judicatory solid Wu
"The gender boodles " do not have " into punishment " , main reason still comes from the obstacle of level watch case manufacturerof judicatory solid Wu, actual maneuverability is weaker, and legislation must consider social acceptance and actual maneuverability.
New capital signs up for: From 1997 new " criminal law " carry out up to now, had edited 8 times, but the real situation that faces power quality to trade to be sent high, why to bring into all the time " does the gender boodle " ?
Zhou Guangquan: "The gender boodles " the obstacle that enters punishment, be not come from legislative level, however level of judicatory solid Wu. Increase in legal clause " the gender boodles " relevant provision, this does not have difficulty. But real operation namely law is carried out, difficulty is very great.
Obtain evidence for instance. Property boodles, can wait for all sorts of ways through seizing stolen goods, gather evidence. But " the gender boodles " concealment the gender is very strong, both sides is power quality trades after all relation, there still is real feeling between each other, this is to maintain whether to form " the gender boodles " crucial. Some provide the personnel of the service in reality, stem from the reason such as individual safety, privacy, meeting " pretend " with bribery person sentient, the power quality that denies both sides trades relation. So, identify " the gender boodles " , cannot pure support affidavit, need other evidence proof. How to gather other evidence? Groovy trick is very difficult, need method of a few technologies sometimes, monitoring mail, phone, short message is waited a moment. But once allow to investigate mechanism to be opposite " the gender boodles " use technology measure, make investigation authority was not restricted possibly, this is not possible below law setting. What law society needs to do is investigation right is restricted on certain level. Accordingly, "The gender boodles " how to obtain evidence, was immersed in be in a dilemma.
Have again, as a result of " the gender boodles " evidence does not decide the factor is very big, produce change likely at any time, if " the gender boodles " into the blame, certainly will gifts the freedom with judicatory larger staff cuts a quantity into parts to counterpoise, this raised tall requirement to the business quality of judicatory personnel, professional ability. Show level, personnel of our country judicatory especially personnel of basic level judicatory, quality and capability are nharrison hot spring public poolot high still. And the judgement that boodles to whether be being put in the gender, need judge heart to believe firmly sometimes, if judicatory capability is not high, judgement conclusion has a problem possibly.
So, it is the quality ability angle from law sets out no matter, or from put an end to the respect such as corruption of judicatory of misjudged case, precaution to consider, current, our country still is not had " the gender boodles " the foundation that joins punishment.
Legislation must consider social acceptance and actual maneuverability, otherwise, once the law has regulation of proclaimed in writing, but reality cannot be operated cannot conviction, with respect to the authority that can harm law, earnest sex, make legislation becomes trifling matter.
New capital signs up for: "The gender boodles " do not have " into punisthe most popular watch caseshment " , is still having a reason law controversy endlessly?
Zhou Guangquan: Law is open to question. For example, our country criminal law is restricted the object of bribery blame at " property " , with " bribery income amount " the decision is penal. Right " boodle " content, all through the ages of bound of criminal law theory is open to question, some is its demarcate property; Some thinking, should include property with etc but metric, estimated corporeal sex interest; Some thinking, should include the profiteering of interest of sex of property, material and blame belongings sex, "The gender boodles " answer classify " profiteering " .
spring poolIn addition, still some of scholar thinks, "The gender boodles " it is moral ethics problem, not be legal problem; "The gender boodles " once enter a blame, the privacy right that can violate an official is waited a moment.
But, these controversy, not be " the gender boodles " did not bring into " criminal law " reason. "The gender boodles " do not have " into punishment " , main reason or I a moment ago mentioned, come from the obstacle of level of judicatory solid Wu, actual maneuverability is weaker.
The make a comprehensive view is other country, a few countries of European although will " the gender boodles " brought intnorth face shirtso " criminal law " adjust a category, but conviction the case of measurement of penalty is very few, face as much " actual maneuverability " this difficult problem.
Should be " the gender boodles " make very legislative preparation into the blame
"The gender boodles " violate official privacy right, this viewpoint I more not approve of. The choice becomes an officer, go up to be equivalent to choosing to do public person somehow, privacy right should be restricted. Once the official had " the gender boodles " behavior, did the business of light of not to be exposed to, must be supervised by judicatory, cannot take privacy right to make excuse.
New capital signs up for: How do you look to these controversy? Whether do you think, active " criminal law " the content of medium bribery, not just property of bureau be confined to, should still include " does the gender boodle " those who wait for blame belongings sex " profiteering " ?
Zhou Guangquan: From should like that the level, your understanding is right. Our country was joined 2005 "U.N.Anti-corruption defeats convention " , this " convention " set the 15th times, bribery blame and the most essential feature of bribery blame are: Provide shocking benefit, serve as in order to make service personnel is being carried out when official business or nonfeasance. Mention here " unfair advantage " , meaning is apparently broad at the to bribery limits regulation in our country criminal law.
The definition of the country such as boreal Europe and area of our country Hong Kong to bribery content, also be " profiteering " , that is to say, service personnel should receive shocking benefit only, include to accept interest of sex of the property that other offers, belongings and other benefit, it is to take bribes. The fact proves, anti-corruption defeats successful country and area, to the content of bribery, those who use is this is planted " broad sense " definition.
As to " the gender boodles " it is moral problem, still be the controversy of legal problem, I think, "The gender boodles " the harm to the society, already moral category can be not adjusted. More what is more,the rather that, the illegal action that is denounced by moral ethics place the more, jump over should by legislative chastwatch casesen, this is the lthe most popular north face shirtsegislative principle of world each country. Current, be in our country, "The gender boodles " the object that is moral ethics condemnation, negative opinion is very high, should rise to legal level so.
"The gender boodles " violate official privacy right, this viewpoint I more not approve of. The choice becomes an officer, go up to be equivalent to choosing to do public person somehow, privacy right should be restricted. Once the official had " the gender boodles " behavior, did the business of light of not to be exposed to, must be supervised by judicatory, cannot take privacy right to make excuse.
New capital signs up for: That is to say, to " the gender boodles " all sorts of viewpoints that cannot enter a blame, you not approve of. So whether be necessary to be repaired again " criminal law " , fill " does the gender boodle " ?
Zhou Guangquan: "The gender boodles " otherwise should bring into criminal law, it is psychology of changes of a law tradition with the country, history, countryman, current judicatory resource configures the complex issue related the state. Law society construction has level sex, we must see this. A country has the different job that does a combat with crime in different period. Current, our first job hits the receives property bribery crime with a few big impacts namely, counterpoise namely money trades, with limited judicatory natural resources, had solved this problem first.
But this is not meant take no account of completely " the gender boodles " into the blame this problem. Power quality trades and power money trades same, had become a kind of when public right and expedience trade special form. " U.N. anti-corruption defeats convention " the legislative experience with etc country, offerred for us " the gender boodles " the referenced text that enters a blame. Judiciary, legislature should will " the gender boodles " serveharrison hot spring deal as a task into the blame, survey our country " the gender boodles " the rule of the case, characteristic, handle a case difficulty is waited a moment, to will come " the gender boodles " into the blame, make very legislative preparation.
■ interview honored guest
Zhou Guangquan
Courtyard of Tsinghua university law is taught, doctoral student adviser, committee member of committee of law of countrywide National People's Congress, participate in " criminal law amendment (7) " , " criminal law amendment (8) " legislative job. have " authority of amendment of criminal law all previous is unscrambled " etc.
□ new capital signs up for reporter Wang Shu
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