增设操纵体育比赛罪的质疑

面对体育比赛过程中频繁出现的黑哨、假球、赌球等操纵比赛的行为，有观点认为传统贿赂犯罪和赌博罪不足以完全评价操纵行为，建议增设操纵体育比赛罪。但从刑法教义学视角来看，无论是黑哨还是假球都不具有外在举止性且无法达到"排除一切合理怀疑"的刑事证据证明标准，"操纵"行为不具有明确性。行为的不明确导致了无法采取例示法对操纵行为进行类型性表达。纯粹操纵型、贿赂操纵型和赌博操纵型三类操纵比赛行为中可以被刑法评价的仅剩贿赂行为和赌博行为。因此，增设操纵体育比赛罪不符合刑事立法增设新罪所要求的明确性、类型性和必要性原则，适用受贿罪、非国家工作人员受贿罪和赌博罪规制即可。

Query on Adding Crime of Manipulating Sports Competition

In the face of the frequent game manipulation such as unfair call, match fixing and gambling in the process of sports competition, some hold that the traditional bribery crime and gambling crime are not enough to fully evaluate the manipulation, and it is suggested to add the crime of manipulating sports competition. However, from the standpoint of criminal law doctrine, neither black whistle nor match fixing has external behavior, and cannot meet the criminal evidence proof standard of "excluding all reasonable doubts", and the "manipulation" is not clear. The ambiguity of manipulation leads to the inability to be an example to express the behavior. In addition, among pure manipulation, bribery manipulation and gambling manipulation, only bribery and gambling can be evaluated by the criminal law. Therefore, the addition of the crime of manipulating sports matches does not meet the principles of clarity, type and necessity required by the addition of new crimes in criminal legislation but it can be regulated by the crime of bribery, the crime of bribery of non-state staff and the crime of gambling.