南昌大学学报（人文社会科学版）

《关于办理贪污贿赂刑事案件适用法律若干问题的解释（二）》第八条将非公职贪污贿赂犯罪的定罪量刑由倍数标准修改为参照标准，引发了关于同罪同罚与违背罪责刑相适应原则的争议。参照标准没有采取倍数差异化模式，看似意料之外实属情理之中。参照标准并非否定非公职与公职的贪污贿赂犯罪之间的罪质与社会危害性差异，而是兼顾事实判断与价值判断、形式判断与实质判断，旨在以实质化评价替代倍数标准的形式化判断，有利于实现定罪量刑的实质正义。参照标准既要遵循比例原则与罪责刑相适应原则并以之为内在约束，又要贯彻宽严相济刑事政策并以之作为外在限制。参照标准将入罪与量刑的形式基准作为参考，同时综合考虑犯罪的性质和情节，准确评估社会危害性，有利于原则性与灵活性相结合。参照标准的功能性拓展对于新司法解释中相关规定的理解与适用具有积极的导向作用。

Article 8 of the "Interpretation (II) on Several Issues Concerning the Application of Law in Handling Cases of Embezzlement and Bribery" changes the sentencing standard for embezzlement and bribery committed by non-public officials from a multiple-based criterion to a reference-based one， sparking debate over equal punishment for equal crimes and potential violations of the principle of proportionality between guilt and penalty. The adoption of the reference standard， which does not employ a differentiated multiple ratio model， may seem unexpected but is actually reasonable. This standard does not deny differences in the nature and social harm caused by embezzlement and bribery among public and non-public officials; rather， it balances factual and value judgments， as well as formal and substantive assessments， aiming to replace the formalized evaluation under the multiple standard with a more substantive approach， thereby promoting substantive justice in criminal conviction and sentencing. The reference standard must both adhere to the principle of proportionality and the principle of proportionality between guilt and penalty as internal constraints， while also implementing the criminal policy of combining leniency and severity as an external limitation. By taking into account formal benchmarks for criminal liability and sentencing as references， while comprehensively evaluating the nature and circumstances of the offense and accurately assessing its social harm， the reference standard effectively combines principle with flexibility. Its functional expansion provides positive guidance for understanding and applying relevant provisions in new judicial interpretations.