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受贿且渎职犯罪在司法实践中经常相互出现,对其并罚还是单罚,却一直没有定论,这严重制约了检察机关查办该类案件。在理论上各种学者的观点和认识也并不一致,在司法实务中,各地的判例也存在不同,如何解决受贿型渎职犯罪,已成为当前检察机关查办职务犯罪案件的难点问题。本文通过刑法相关原则,法益保护以及“为他人谋取利益”在该类犯罪中的定位三方面法理分析,对受贿型渎职犯罪应当认定为数罪并罚。
Bribery and dereliction of duty often appear to one another in judicial practice. However, it has been inconclusive whether the punishment is a single punishment or not. This seriously restricts the prosecutors from investigating such cases. In theory, the views and understandings of various scholars are not the same. In judicial practice, there are also different precedents in different jurisdictions. How to solve the crime of bribe-type dereliction of duty has become a difficult issue for current procuratorial organs to investigate and handle job-related crimes. This article, through the legal analysis of the relevant principles of criminal law, the protection of legal interests and the seeking of benefits for others in the category of crimes of this kind, should be regarded as the joint punishment of several crimes in the crime of bribe-type dereliction of duty.