中文摘要：

随着刑法保障人权的不断发展,贪污罪、受贿罪的没收财产刑出现诸多不合时宜的弊端,不仅有违背宪法比例原则和刑法罪责自负原则的嫌疑,难达特殊预防之刑罚目的,也与刑罚轻缓化趋势相背,甚至是财产刑执行的桎梏和国际司法协助请求被拒的主要原因。无论是从没收财产刑主废论的保障机能出发,还是从其主存论的刑法保护机能来看,抑或是从贪污罪、受贿罪犯罪主体合法财产难以清晰界定或其灰色财产处置异化的规制怪圈考虑,贪污罪、受贿罪的没收财产刑都应当退出其刑罚的历史舞台。与之相应的是,转变对没收财产刑的传统认识,引入异曲同工且较少负效应的等值没收制度,建立日额罚金制和罚金刑易科制的经济制裁手段,建构综合治理贪污贿赂犯罪的多元化机制,方为依法反腐、依法治腐、依法防腐的根本出路。

英文摘要：

With the development of the criminal law that aims to protect human rights, many ill-timed de- fects of the penalty of property confiscation applied to the Crimes of embezzlement and acceptance of bribes have arisen, such as violation of proportionality and the principle of bearing responsibility solely for one＇ s own crimes. Moreover, it hardly achieves the purpose of special prevention of punishment, and it goes against the development of lightening penalties. Even more seriously, it is the shackles of the execution of property penal- ty, and it is the major reason why Chinese international judicial assistance requests are refused. This penalty can not reflect whether the function of protection of human rights which abolishment theory prioritizes, or the function of protection of people＇ s benefits which approval theory prioritizes. Furthermore, the property of the subjects of these two crimes is difficult to identify, and this punishment is dissimilated to the confiscation of gray income. Therefore, the penalty of property confiscation applied to these two crimes should step down from the stage of history of punishments. Accordingly, some reforms should be carried out in order to adapt to its abolition. The traditional understanding of the penalty should be changed; forfeiture of value should be trans- planted, which is different from this penalty but has the same function and has less negative effect; day fine and fine exchanging institution should be established. Setting up a diversified corruption crimes control system is the solution to anti-corruption, to curbing corruption, and to preventing corruption according to the law.