论“买功”行为的性质.pdfVIP

Abstract “Buying meritorious service” is a new phenomenon appeared in judicial practice in recent years. Since the “rendering meritorious Service ’system is not perfect, there is a disorder in judicial practice, such as, no standard for cognizance, and investigation procedure. Some people even take it improperly as the basis to reduce the criminal sanction for the defendant. In current academic field, there is no uniform opinion on the issue that whether the “buying meritorious service” can be cognized as “rendering meritorious Service ’. There are different opinions, like, positive theory, negative theory, or distinguishing theory. They all discuss the nature of the “buying meritorious service” from different perspectives. But there are different degrees of defects for each theory. They have not grasped the nature and legislative principle for “rendering meritorious Service”. The author proposes the action of ‘buying meritorious service ’ should be cognized as ‘rendering meritorious Service”. It is not only based on the requirement from the principle of conviction and penalty according to the law, but also based on the value pursuit for the “rendering meritorious Service ’system. And meanwhile it is based on the requirement of the natural characteristics of the ‘rendering meritorious Service’system. But because of the basic legal principal that criminals can not benefit from their own illegal activities, to ‘buying meritorious service” through illegal activities should be excluded from the scope of “rendering meritorious Service ’ However, the judicature ’s choice is extremely utilitarian. The litigation from the victims has been ignored to some extent. In order to adjust it, we should build a national system to compensate the victims. Key words: Buying meritorious servi