非国家工作人员贿赂犯罪罪与罚问题探究

近些年来，随着我国市场经济不断发展，发生在商品流通和服务行业等的商业贿赂行为非但未得切实有效根治，反其触角逐步伸入社会许多行业和领域，情势严峻、危害严重!为此，“两高院”先后公布、印发《罪名补充规定（三）》及《适用法律问题意见》，以“非国家工作人员贿赂犯罪”替代原来“公司、企业或者其他单位工作人员贿赂犯罪”，并就当前办理商业贿赂刑事案件适用法律问题提出意见。然而，此举仅是有关罪名改变和部分法律适用，尚未完全彻底有效解决问题。为完善刑事立法，统一罪名应用，规范执法行为，还需进行法条内容调整与犯罪要件修正、入罪门槛降低与法定刑度提高、刑罚幅度协调与刑种机制完善及借鉴英关法系信义义务理论，打造刑民法律之间制度接口，构建我国商业贿赂犯罪体系，健全惩防职（业）务犯罪长效机制，开创党风廉政建设和反腐败斗争新局面。

Research on the Conviction and Penalty of the Bribery Crimes by Non-national Staffs

In recent years, with the development of the market economics in our country, the commercial bribery which has occurred in the fields of commodity circulation and service industry not only has not be completely solved, but also spread to many industries and fields , meanwhile it has caused serious negative impact on the society! To this end, Supreme People＇ s Court and Supreme People＇ s Procuratorate have been published and issued of the ＂charges Supplementary Provisions （ 3 ） ＂ and ＂views on the law applicable＂ to ＂non - national staff and bribery,＂ which substitutes the original ＂company, enterprise or other unit staff and bribery, ＂and have issued on the law application of current handling of criminal cases of commercial bribery. However, this is only part of the offense to change and application of the law and has not been fully and completely effective solution to the problem. To improve the criminal legislation, uniform charges of applications, standardizing law entorcement behavior, we still need to adjust the law reads , amend the Elements of Crimes , reduce the threshold , raise the Legal Sentence, coordinate the penalty rate , improve the criminal kinds of mechanisms , learn from common law fiduciary duty theory, and to create a system interface between the criminal law and the cival law , build China＇ s commercial bribery system, improve the long - term mechanism of punishment and prevention on occupational crime, so that we can create a new situation in honest government building and anti - corruption struggle .