论约定受贿的犯罪形态

约定受贿在我国刑法中并无规定,不是一种单独的受贿类型。理论和实务界对约定受贿是否构成犯罪,以及属于受贿罪的哪种犯罪形态,分歧颇多。通过对中外受贿犯罪的立法比较,以符合构成要件的法益的解释论为立场,"约定"应当被认为是"收受"的"着手",约定受贿是受贿罪的未遂形态。从体系解释和量刑纠偏的角度出发,约定受贿应当认定为犯罪未遂,而"达成合意既遂说""代为保管既遂说""将来交付既遂说"等观点并不具备合理性。

Criminal Pattern of Bribery Agreement

There is no stipulation on accepting bribes in the criminal law of Our country,which is not a single type of accepting bribes.There are many differences between the theoretical and practical circles on whether accepting bribes constitutes a crime,and what kind of criminal pattern belongs to the crime of accepting bribes.This paper compares the legislation of bribery crime in China and foreign countries,and takes the interpretative theory of legal benefits in line with the constitutive requirements as the standpoint,holds that"agreement"is the"beginning"of"accepting",and"agreement"is the attempted form of bribery crime.At the same time,it also refutes the viewpoints of"accomplished agreement","entrusted accomplished agreement"and"delivered accomplished agreement in the future".From the perspective of system explanation and sentencing correction,it is reasonable to identify the acceptance of bribery as an attempted crime.