假球行为的刑法定性

摘要

我国假球案以受贿定罪，遗漏了对假球行为的定性，形成“重反腐、轻打假”的错位；理论界对假球定性的探讨也缺乏说服力。域外司法不将假球认定为受贿罪，而均认定为诈骗罪，其经验值得借鉴。我国假球亦应定性为诈骗罪：参赛者未向组织者提供真实的比赛，获得“债务免除”利益；保护比赛是保护财产法益与保护体育诚信的完善契合；量刑时应考虑体育诚信的主观价值损失；不能以国家利益为借口打假球。因假球而受贿的，则触犯诈骗与受贿两罪名。%In China, match-fixing cases are convicted of a bribe acceptance crime, while the determination of the nature of matching-fixing behaviors is omitted, which has formed such a wrong orientation as considering anti-corruption more important than anti-match-fixing;the academic community’s researches on the determination of the nature of matching-fixing are not convincing as well. In jurisdictions abroad, matching-fixing is not convicted of a bribe acceptance crime, but convicted of a fraud crime;their experiences are worthy of our reference. In China, the nature of match-fixing should be determined as a fraud crime:a player fails to provide the organizer with a real competition and gets the interest of“debt exemption”;competition protection is the perfect fusion of property inter-est protection and sports honesty protection; the loss of subjective value of sports honesty should be considered during conviction;national interest shall not be used as an excuse for matching fixing. People who accept a bribe as a result of match-fixing will be guilty of both fraud and bribe acceptance crimes.