摘要
在通过国家工作人员的职务行为套骗补偿款的案件中,只有对补偿款具有处分权限的国家工作人员才能成立贪污罪的正犯;不具有处分权限的国家工作人员帮助他人骗取补偿款的,仅成立诈骗罪与滥用职权犯罪的想象竞合。贪污罪、诈骗罪中的非法占有目的包括使第三者(含单位)非法占有,具有处分权限的国家工作人员故意将补偿款违规发放给他人的,即使没有分赃,也构成贪污罪;不具有处分权限的国家工作人员滥用职权故意帮助他人骗取补偿款的,即使没有与正犯通谋、没有分赃,也成立诈骗罪。具有处分权限的国家工作人员明知一般主体骗取补偿款或者与之通谋,违规将补偿款发放给一般主体的,国家工作人员的行为成立贪污罪,一般主体成立诈骗未遂(无通谋时)或者贪污罪的共犯(有通谋时);在这种情形下,既不能对一般主体认定为诈骗既遂,也不能对国家工作人员仅认定为滥用职权犯罪。具有处分权限的国家工作人员违规决定将补偿款发放给他人,进而收受贿赂的,即使没有分赃,也应按贪污罪与受贿罪实行数罪并罚;不具有处分权限的国家工作人员帮助他人骗取补偿款的,不管是否分赃,均构成滥用职权犯罪与诈骗罪的想象竞合,从一重罪处罚;如若同时索取、收受贿赂的,应将受贿罪与前一重罪实行数罪并罚。
In cases of fraudulently obtaining compensation through duty behavior,only the state functionary who has the power to dispose such compensation fees can be the principal offender of the crime of corruption.Where a state functionary who does not have the power to dispose such compensation fees helps others to defraud such compensation fees,he shall be held as an imaginative jointer of offences for the crime of fraud and the crime of abusing power.The purpose of illegal possession required in the crime of corruption or fraud includes the purpose of letting others(including other units)take illegal possession for themselves.Where a state functionary who has the power to dispose compensation fees intentionally grants such fees to others in violation of compensation rules,he shall be held as the crime of corruption,even if he does not share any fees thereof;where a state functionary who does not have the power to dispose such compensation fees intentionally helps others to defraud such fees by abusing his power,he shall be held as the crime of fraud,even if he has no conspiracy with the principal of fraud or shares any fees thereof.Where a state functionary who has the power to dispose compensation fees knowingly grants compensation fees to other ordinary actors who are defrauding such fees(where there is no conspiracy)in violation of compensation rules,he shall be held as the crime of corruption,while the others shall be held as the attempted crime of fraud.If a state functionary who has the power to dispose compensation fees colludes with other ordinary actors to grant compensation fees to others(where there is a conspiracy)in violation of compensation rules,both of them shall be held as joint crimes of the crime of corruption.Under the aforesaid circumstances,neither the ordinary actors shall be held as completed crime of fraud,nor shall the state functionary only be held as the crime of abusing power.Where a state functionary who has the power to dispose compensation fees violates the compensation rules to grant such fees to others and takes bribes for that,he shall be held as combined punishment for the crime of corruption and the crime of bribery,even if he does not share any fees thereof.Where a state functionary who does not have the power to dispose compensation fees helps others to defraud such fees,he shall be held as an imaginative jointer of offences for the crime of fraud and the crime of abusing power,and shall be punished according to the principle of choosing the most serious crime.If the state functionary extorts or takes bribes simultaneously,he shall be held as combined punishment for the crime of bribery and the previous most serious crime.
出处
《法学评论》
CSSCI
北大核心
2021年第2期25-38,共14页
Law Review
关键词
补偿款
贪污罪
诈骗罪
利用职务上的便利
非法占有目的
Compensation
Crime of Corruption
Crime of Fraud
Taking Advantage of One’s Duty
The Purpose of Illegal Possession
作者简介
张明楷,清华大学法学院教授。
