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在司法实践当中离职国家工作人员受贿存在着形态各异的表现形式,而实务部门在实践当中对该类犯罪证据的收集、固定非常困难,致使实务部门在对此类犯罪进行查处时会遇到各种各样的疑难和困惑,造成有些案件不能得到及时有效查处、有些犯罪行为人得不到其应有的惩罚,这直接影响了反腐败工作的深入开展。一般认为离职国家工作人构成受贿罪必须以事先约定为前提,否则不符合受贿罪的犯罪构成,由于这种把权力以期货的方式来出卖是一种新的犯罪形态,加之相关立法工作相对滞后,目前惩治部分“期权”受贿犯罪尚缺乏必要的法律依据。笔者以《关于办理受贿刑事案件适用法律若干问题的意见》第十条规定为视角,对离职后受贿是否应以“事先约定”为前提进行分析,进而对完善离职后受贿规定提出几点粗浅意见。
There are various forms of bribery of national staff leaving the country in the judicial practice. However, it is very difficult for the substantive departments to collect and fix such criminal evidence in practice, which causes the substantive departments to encounter such crimes in the investigation All kinds of difficulties and confusion have caused some cases not to be investigated promptly and effectively, and some of the criminals have not been punished properly. This has a direct impact on the further development of anti-corruption work. It is generally considered that the crime of accepting bribes by state workers who leave the country must be based on the premise of prior agreement or otherwise not in conformity with the crime of accepting bribes. Because such a crime of selling power by means of futures is a new form of crime, and the related legislative work lags behind At present, there is a lack of necessary legal basis for the punishment of some “options” bribery crimes. From the perspective of Article 10 of the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery, the author analyzes whether after-service bribery should be based on the premise of “prior agreement”, and then puts forward some suggestions on how to improve after-service bribery provisions Superficial opinion.