我国受贿罪利用职务上的便利之立法误区及出路

本文认为 ,我国刑法对受贿罪“利用职务上的便利”这一职务要件的规定 ,在立法体例上过于单一、在立法用语存在不科学性 ,围绕这一职务要件 ,我国刑法及司法解释在现有法律框架内进行了四次修补 ,仍不能适应司法实践的需要。我国刑法关于受贿罪“利用职务上的便利”的立法一开始就走入了一个无法修补的误区。必须对原立法进行彻底的修改。

The Legislative Mistakes in Taking Advantage of His Position Which Is Prescribed in the Guilt of Bribes in Criminal Law and the Solution of It

The prescript of taking advantage of his position, which is an element in the guilt of Bribes in criminal Law, is too single in the its style of legislation and is unsentific in its vocabulary. Our country's criminal law and judicial interpretation have tried four times to solute the problems mentioned above in the frame of the existing law, but which still can't suit for the judicial need. Obviously the presript can't be mended, and it needs to be altered completely.