论商业贿赂罪的立法完善

商业贿赂犯罪的立法完善上存在不少歧见。在立法模式上,在完备现有形式刑法前提下,有必要兼采实质刑法的模式;在构成要件上,应以市场秩序和公平竞争作为保护法益、适当扩大贿赂的范围、取消“为他人谋取利益”要件、保留“谋取不正当利益”要件、增设外国公职人员、国际公共组织官员贿赂犯罪;在刑罚设置上,罚金刑的数额应当参照非法获利数额确定,并增设资格刑种。

The Legislation on and Its Betterment of Commercial Bribery Offences

There have been many different opinions in the process of bettering the legislation of commercial bribery offences.In terms of legislative patterns,it is necessary to adopt the pattern of substantive criminal law on the basis of bettering the formal criminal law.As regards essential conditions,it is important to take market order and fair competition as the principle of protecting lawful interests,to properly enlarge the scope of bribery,to abandon the essential condition of "seeking gains for another person" while maintaining the essential condition of "seeking unjustified gains".New clauses should be added concerning the bribery offences of foreign governmental officials and the officials of international public organizations.In establishing penalty,the volume of fines should be decided on the volume of illegal gains and the penalty types of disqualification should be added.