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《刑法修正案(七)》出台前,“关系密切人”和国家工作人员共同实施受贿行为通常按照共犯处理,《修正案(七)》中利用影响力受贿罪确定下来后,表明“关系密切人”受贿也能单独成罪,这就使我们在认定“关系密切人”受贿是按共犯处理还是按照利用影响力受贿罪必须加以区分。国家工作人员在利用职务之便为请托人谋取利益之时,不存在受贿意图,但在为他人谋取利益之后,明知请托人为此而送财物,仍予以接受,应认定为受贿罪。这不存在问题,问题的关键在于“关系密切人”在将受贿情况告诉国家工作人员时已经符合利用影响力受贿罪的构成要件,在处理时是按照受贿罪共犯还是利用影响力受贿罪处理呢?我们认为“关系密切人”和国家工作人员成立受贿罪的共同犯罪。如果利用影响力受贿罪对“关系密切人”处罚更重,则应将“关系密切人”的行为认定为利用影响力受贿罪。
“Criminal Law Amendment (VII)” Before the promulgation of the “Criminal Law” (“Close Relationships”) and state staff to jointly implement bribery are usually handled in accordance with the accomplice, “Amendment (VII)” in determining the impact of taking bribes, “Close relationship” can also be a separate crime, which makes us have to distinguish between “accepting bribes” by accomplice or by taking advantage of influence bribery. When a state staff member takes advantage of his position to seek benefits from a trustee, there is no intention of bribery. However, after seeking benefits for others, knowing that the trustee has to deliver property for the purpose is still accepting it and shall be deemed a bribery offense. This is not a problem. The crux of the problem lies in the fact that “close people ” told the state staff when accepting bribes that they have complied with the elements of the crime of accepting bribes using influence, whether they should be guilty of accepting bribes or accepting bribes Deal with it? We think “close people ” and the state staff set up joint crimes of accepting bribes. If the crime of accepting bribes by influence is heavier than the punishment of the “affiliates”, the “affiliation” should be regarded as guilty of accepting bribes by influence.