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通过对我院2010年至2012年三年来的贪污贿赂职务犯罪进行分析发现,被判处免于刑事处罚或有期徒刑缓刑等非监禁刑的,有一个共同的特点就是,被告人在法院审判期间,提交了自己为单位或集体垫支的一部分单据,称贪污受贿赃款用于以上单位或集体开支了,没有占为己有。法院采信该证据后对被告人这部分开支从犯罪所得中扣除后,对被告人作出了判决。本文从刑法保护的法益、犯罪形态等五个方面对是否应将“用于公务支出”从犯罪所得中扣除进行了分析,认为犯罪形态一经完成,犯罪结果即已产生,所侵害的法益将不可逆转,“用于公务支出”只是赃款去向的问题,可以作为酌定量刑情节考虑。
Through the analysis of the crime of corruption and bribery in our hospital from 2010 to 2012, we find that one of the common features of sentenced to non-imprisonment, such as exemption from criminal punishment or suspended sentence, is that during the court trial, Submitted his own unit or collective support as part of the documents, said corruption and bribery of money for the above units or collective expenses, did not take up own. After the court took the evidence and deducted the expenses of the defendant from the proceeds of crime, the defendant was sentenced. This article analyzes the legal benefits and criminal forms of criminal law protection from the deduction of the proceeds from criminal activities, and concludes that once the criminal form is completed, the result of the crime has been generated and the legal interests infringed upon Will be irreversible, “For public service expenditure ” is only the problem of whereabouts of illicit money, can be considered as discretionary sentencing circumstances.