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在非国家工作人员作为国家工作人员代理人出面索贿的场合中,代理人“超额索贿”行为在司法定性上有共同受贿说、单独受贿说、片面共犯说、诈骗说、侵占说、不当得利说等诸多争议。该行为因超出了共同犯罪故意的成立范围而不能成立受贿罪的共犯、因主体不具备特定身份而不能成立单独受贿罪。侵占说、不当得利说因未能准确认定超额部分贿赂的性质、违背制度内涵而难以成立。诈骗说完整地把握了“超额索贿”行为的实质,符合充分评价原则要求,立足于规范行为的角度上应予采纳。
In cases where non-state workers come forward to pay bribes as agents of national staff, the agent “over-bribed” acts have jointly taken bribes in judicial character, saying that bribery alone says one-sided accomplice, fraud, misappropriation, improper Lee said that many other controversy. The act can not establish an accomplice of bribery crime because it exceeds the scope of the intentional establishment of the common crime and can not establish a separate bribery offense because the subject does not have a specific identity. The misappropriation said that because of the failure to accurately identify the nature of excess bribes, unjust enrichment is unmanageable against the connotation of the system. Fraud that completely grasp the “over-bribe” behavior in essence, in line with the requirements of a full evaluation principle, based on the normative behavior should be adopted.