案发前退交财物行为的定性研究  

Study on Determination of Behavior of Returning or Turning in Property before Case Is Exposed

作　　者：齐秋敏[1] 

机构地区：[1]南京大学法学院,江苏南京210093

出　　处：《温州大学学报（社会科学版）》2010年第3期70-74,共5页Journal of Wenzhou University：Social Science Edition

摘　　要：对案发前退交财物行为的定性有两种观点。一种观点是不应该将其认定为受贿;另一种观点是根据设定的具体财物退交时间,来确定退交是否及时,进而判断其行为是否构成受贿。这两种观点都存在缺陷。行为人在收受财物时主观上有无受贿故意是定罪的关键。对此分析得出两种情形:一种情形是行为人无受贿故意且事后立即设法退交,这种情形不具备受贿罪的构成要件;另一种情形是行为人已有受贿故意且收受财物后未立即退交而在案发前退交,这种情形应当入罪。在此基础上进行财物退交及时性的判断,对受贿罪的认定会更准确。There are two views on the determination of the behavior of returning or turning in property before the case is exposed. One is that it should not be determined as bribery; the other is that whether it is determined as bribery depends on the judgment on timeliness of returning or turning in property according to the specific time set for returning. However, both of them have defects. Whether a person has intent of taking bribes subjectively when he is receiving property is the key to conviction. Through analysis of this, two cases could be drawn： one is that a person has no intent of taking bribes and tries to return or turn in property immediately after receiving it, which has no elements of the crime of bribery; the other is that a person has intent of taking bribes and returns or turns in property merely before the case is exposed instead of at the moment of receiving it, which should be determined as bribery. Moreover, on the basis of the above analysis, judgment on timeliness of returning or turning in property can make determination of bribery more accurate.

关 键 词：国家工作人员 收受财物 退还 定性 

分 类 号：D924.392[政治法律—刑法学]