论文部分内容阅读
从刑法修正案九拟制到面世至今,非法收受礼金罪入刑始终备受争议,法律史对该争议提供了来自历史经验的回答——中国古代的“受所监临”制度。该罪在汉代首次出现,并于唐代发展完善,此后被历代沿袭,到明清尽管名义上被删除,但实际仍被沿用,因此该罪实际运作于汉代至清代各代惩治腐败的律法中。当前腐败的情况仍然受到传统文化的影响而与古代的腐败情况呈现出大量相似特征,因此中国古代“非法收受礼金罪”对当代关于非法收受礼金罪的探讨提供借鉴。本文主要研究该罪存废的沿革以及包括监临家人乞借、去官受旧官属、私役所监临、受所监临供馈等一系列具体内容的设置以及对传统赃罪犯罪金额计算方法“计赃定罪”的运用,从中得出对非法收受礼金罪是否设置以及如何设置的启示。
From the amendment of the Criminal Law 9 to the date of publication, the crime of accepting gifts of illegitimate funds has always been controversial. The history of law provides an answer from historical experience to this controversy - the ancient Chinese system of “being supervised”. The crime first appeared in the Han Dynasty and developed well in the Tang Dynasty. Since then it has been followed from generation to generation. Although the Ming and Qing Dynasties were nominally deleted, the crime was still used. Therefore, the crime actually operated in the Han Dynasty and the Qing Dynasty to punish the law of corruption France. The current situation of corruption is still influenced by the traditional culture and shows a large number of similar features with the ancient corruption. Therefore, in ancient China, “the crime of receiving money of illegally received gifts” provides references for the contemporary discussion on the crime of receiving money illegally. This article mainly studies the evolution of the crime’s extinction and the setting of a series of concrete contents including the supervision of family members, the official official, the prisoner of private servants, the prisoner’s supervision, etc., as well as the calculation of the traditional stolen crime amount Method of “accounting for stolen goods,” the use of derived from the illegal acceptance of gifts and whether to set the enlightenment.