代持型受贿罪既未遂的认定研究

A Study on the Identification of Consummated and Attempted Acts in Entrusted-Holding Bribery Offenses

摘要: 本文深入研究代持型受贿罪，其行为隐蔽、涉及财物多样，导致既未遂认定困难。针对现有判断代持型受贿罪既未遂学说之困境，文章倡导采用“实际控制说”。“实际控制说”具有显著优势，它契合受贿罪本质，符合罪责刑相适应原则，还能增强司法实践操作性。文章详细阐述了“实际控制说”在现金、车辆、虚拟货币、股份、房产等财物代持情形下的具体判断标准，旨在为司法实践中准确认定代持型受贿罪既未遂提供清晰且具操作性的理论指引，确保罪责刑相适应原则的精准贯彻。

Abstract: This paper deeply studies the crime of accepting bribes on behalf, which is concealed and involves various properties, which makes it difficult to identify the crime. In view of the predicament of the existing theory of failed to judge the crime of accepting bribes on behalf, the paper advocates the “actual control theory”. “Actual control theory” has obvious advantages, it conforms to the essence of bribery crime, conforms to the principle of crime, responsibility and punishment, and can enhance the operability of judicial practice. This paper elaborates the specific judgment criteria of the “actual control theory” in the case of cash, vehicles, virtual currency, shares, real estate and other property holding, aiming to provide clear and operational theoretical guidance for the accurate determination of the crime of taking bribes on behalf of the judicial practice, and ensure the accurate implementation of the principle of the compatibility of crime, responsibility and punishment.