Judicial determination of intermediaries' embezzlement in bribery processes
行贿过程中中间人“截贿”的司法认定

摘要

关于截贿行为的司法定性，司法实践中存在着是否将其单独认定为财产犯罪，认定为何种财产犯罪的判断难题。首先，我国宪法与司法解释的立场表明我国对于财产犯罪保护法益的判断应采取经济的法律财产说，即行贿人委托之行贿款应为财产犯罪保护的法益，中间人的截贿行为可以被作为财产犯罪单独评价。其次，对于中间人截贿行为的评价，应当以中间人实行行为的性质与非法占有目的的产生时间为判断标准，进而将其认定为诈骗罪或者侵占罪。以此指引司法实践，有利于更好地贯彻罪责刑相适应原则与平等原则。

Abstract

Regarding the judicial characterization of the act of intercepting bribes, there exists a dilemma in judicial practice as to whether it should be independently recognized as a property crime and, if so, which specific property crime it constitutes. Firstly, the stance of China's Constitution and judicial interpretations indicates that the determination of the legal interest protected by property crimes should adopt the economic legal property theory. This means that the bribe money entrusted by the briber should be considered as the legal interest protected by property crimes, and the act of intercepting bribes by intermediaries can be independently evaluated as a property crime. Secondly, the evaluation of intermediaries' acts of intercepting bribes should be based on the nature of their conduct and the timing of the formation of their intent to unlawfully possess, thereby classifying it as either the crime of fraud or the crime of embezzlement. Guiding judicial practice in this manner is conducive to better implementing the principles of proportionality between crime, responsibility, and punishment, as well as the principle of equality.