有关巨额财产来源不明罪的几个问题

“司法机关无法查清巨额财产的真实来源”和“非法获取巨额财产”不是巨额财产来源不明罪的客观要件 ,本罪的行为只能是不作为 ,不作为特定义务的来源是司法人员的责令。行为人受到责令时 ,如实说明其巨额财产来源于贪污、受贿 ,不能视为自首。行为人的本罪被定罪判刑后 ,又查明其以本罪判处刑罚之涉案财产为贪污、受贿所得 ,则应根据不同情况分别处理。国家工作人员的亲属可构成本罪共犯。为弥补本罪之立法缺陷 ,应直接将本罪以贪污或受贿罪论处。

About Several Issues of the Crime of Holding a Huge Amount of Property with Unidentified Sources

That "judicial organizations cannot make clear the true source of a huge amount of property" and "illegally obtained huge amount of property" is not the objective essential requirement of the crime of holding a huge amount of property with unidentified sources. The act of this crime can only be an omission. The particular obligation of omission is the order of judicial functionary. When an actor was charged, he honestly confessed that the sources of the huge amount of property were defalcation and bribery. This cannot be regarded as a voluntary surrender. After the actor was convicted and sentenced for the crime, the alleged property was proved to be the income from defalcation and bribery through investigation, then punishments shall be made according to different situations. The relatives of state governmental officials can constitute the accomplice of the crime. In order to make up the defects in the legislation concerning the crime, it shall be directly convicted as the crime of defalcation or crime of bribery.