The Re-Advocacy of Positional Fairness as the Protected Interest of the Crime of Accepting Bribes——From the Perspective of Separating Regulatory Purposes and Protected Interests
The current academic discussion on the interests of the crime of accepting bribes is based on the individual legal interests and collective legal interests,and revolves around the theory of the buyability of duty acts and the theory of the fairness of duty acts.In our country,the elements of"seeking benefits for others"of the ordinary crime of accepting bribes have evolved from scratch to existence,and then to be gradually blurred by judicial interpretation.In contrast,in order to exert the explanatory function of the protected interest on the constitutive elements,some scholars,based on the established law,try to discover the protected interest of the crime of accepting bribes from the constitutive elements.The representative theories of legal interest has experienced the development of integrity,from the unbribability of official behavior to the non-selfish interests of public officials.Due to the irreconcilable gap that cannot be bribed between the theory of incorruptibility and the crime of accepting bribes by influence and mediation,the theory of incorruptibility of public office,which can better interpret all types of the crime of accepting bribes,has gained the upper hand in academic circles.According to the constitution of the crime of accepting bribes,the collective legal interests can protect what the norm is.The static and closed characteristics of collective legal interests make it unable to play the function of explaining the dynamic elements,and because of the abstract content,it can not provide a legitimate basis for the legislation of the crime of accepting bribes,but only plays the role of crime classification.Therefore,the concept of collective legal interests should be abolished,and the interests of the crime of accepting bribes protection law should be understood as the fairness of duty acts.In this way,the impartiality of duty acts can provide the basis for the legislative legitimacy and illegality of the crime of accepting bribes,and the normative purpose can explain the reason why the constituent elements of the ordinary crime of accepting bribes are tight to loose,and provide the standard for the classification of crime.In addition,the theory of fairness of duty acts can also respond to the doubts of domestic scholars,because most of the dereliction of duty crimes are not consistent with the ordinary crime of accepting bribes of"seeking benefits for others"behavior,which is not the actual harm corresponding to the ordinary crime of accepting bribes.
crime of accepting bribesprotection interestsnormative purposepersonal legal interestscollective legal interests
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