贪污罪要件及共同贪污定性新论

贪污罪的行为对象虽是公共财物,但也包括非公共财物;其犯罪主体的本质在于从事公务;所谓利用职务便利,是以利用本人的职务便利即直接利用为原则,但也包括间接利用即借助于他人的职务便利;间接利用的成立须以利用者在职务上足以制约被利用者并且同属于一个单位为必需。共同贪污的定性宜以主犯决定说为原则,辅之以身份犯决定说和实行犯决定说。

New Study on the Requisites to Constitute Corruptions and the Crimination of Joint Corruptions

Though the object of corruption is public values, yet includes private ones. The essence of the subject of crime lies in that the corrupter is engaged in public affairs,i. e. taking advantages of one's duty. Though the principle of so called "taking advantage of one's duty ' refers to directly making use of one's duty, yet includes indirectly making use of one's power, i. e. by the aid of other man's duty, which refers to that the used man is restricted by the making one and they are in the same unit. The crimination of joint corruption should take"the theory of deciding by the principal" as principle, complementarily take "the theory of deciding by identities" and "the theory of deciding by the actor".