Research On Constituents Of The Bribery Crime Amount

There is widespread agreement that anti-corruption must be fighting “tigers” andbeating “flies” together, which are compared to corrupt officials of all ranks. It shouldbe understood with both sides. Firstly, we would beat both "tigers" and "flies”.Secondly, we need to differentiate between “tigers” and “flies”. Be a typical featuresof corruption, the crime of accepting bribes is always the focus of anti-corruption.However, with regard to the crimination and penalty to taking bribes, there is alwaysimbalance between crime and punishment. So, in the course of the discussion, thefocus of research was also divided into two parts. Firstly, through researching theconstitution of crime amount, we will achieve an accurately judging on the quantity ofbribery crime, then we learned to distinguish between “tigers” and “flies”；Secondly, through researching on the measurement of penalty basis, we maydistinguish between “tigers” and “flies” to “patting” or “beating”. For the principle ofbalance between crime and punishment, the research begins with analyzing of crimeamount, and ends with the aim of how to perfect the penalty setting and sentencingmechanism.The thesis is composed of five parts, except for the introduction and theconcluding remarks.Chapter one is the summary of the bribery crime amount. Firstly, based on theunified theory of quality and quantity, we get the concept of “crime character”(quality of crime)and” crime amount”(quantity of crime).As objective existence, crime is theunity of quality and quantity. To study bribery crime amount, analysis on theconstitution of crime amount must be based on the character of crime identification.We confirm that trading power for money is the quality of bribery crime, thus the“crime amout” should be according with its social harmfulness. According to therelationship between the elements of crime amount and crime character, we dividecrime amount into elemental constituents and supplemental features. From the above,the author concludes that the elemental constituents of crime amount reflect the socialharmfulness degree of the basic facts of a crime. In the bribery crime, the basic fact istrading administrative power for money. And likewise, it is the crime character ofbribery crime. There are two basic ways in measuring the bribery crime amount.oneis measured by the amount of money involved in the bribery, and the other ismeasured by the seriousness of the infringement of public power. Quantitativeanalysis which is related to elemental constituents and supplemental features ofbribery crime is the basis for this article.Chapter two is the analysis of the amount of money involved in the bribery crime.As the elemental constituent of crime amount, the amount of bribes is the primary oreven sole determinant in measuring the crime amount. The criticism on consideringonly the amount of bribes has been for a long time. However no final conclusion hasbeen reached on it. Although in the view of the most scholars and from the actualcriminal legislation currently, the amount of bribes is not—and more importantlyshould not be—the only factor to measure crime amount. So what is the mostimportant factor in passing sentence, the amount of bribes, other circumstances of thebribery crime, or the consequences of the criminalization? In this chapter, throughanalyzing three aspects of bribery crime: the concept and nature of crime amount, thelegal provisions of bribery crime and the judicial practice, the author has confirmedthe important role played by the amount of bribes in measuring bribery crime amount.Through the empirical study, the author pointed out that while imposing penalties injudicial practice； it is obviously unreasonable to take the amount of bribes as the sole consideration..First of all，the overweight of crime amount does not match with thenature of bribery crime. For another, it poses a threat to balance between crime andpunishment. Besides, it could not correctly reflect the substantial change on the crimeamount. Last but not least, it could not comply with the adjustment range of the objectof bribery crime. In the author’s view, whether or not civil servants perform dutieshonestly is judged by civilian’s personal feeling，and the amount of bribes could notbe quantified solely by the amount of money. On how to put weight on the role ofthe ‘bribes’ and ‘public power’ in measuring bribery crime amount, the article holdsthat we need to think about both the infringement of public power and bribes amountinvolved in the bribery crime at the same time.Chapter three is the analysis of the infringement of public power involved in thebribery crime. In this chapter, public power involved in the bribery crime has beenexplicitly stipulated. The analysis about the infringement of public power includestwo aspects, one is the analysis on importance of public power and the other is theanalysis on severity of the infringement. Through review of legal provisions and caseanalysis, this chapter pointed out that, as the fundamental factor, currently thequantization of public power is not sufficiently done.On the one hand, the quality andquantity of public power is not clearly set thus the infringement of public power islack of quantification. This article gave a deep probing into the approach and practiceof quantization of public power, at the same time, the importance of public power inbribery crime was discussed. In detail, efforts have been put into the following aspects:firstly, to measure the importance of public power by official’s position and jobfunctions； secondly, to categorize the infringement of public power into four types ofcircumstances which should be explicitly set by law, and thirdly to discuss about theexact expressions and importance of the infringement of public power in bribe crime.The article points out that the factor of public power should be deemed as the keycircumstances on the386article of criminal law. Therefore, we believe that “publicpower” and “bribes” are equally important to the measurement of penalty in briberycrime.Chapter four is the analysis of the supplemental element bribery crime amount. Supplemental element is a definition that runs counter to the fundamental element.Different from the fundamental element, supplemental elements are the parts of crimeamount which used to correct fundamental elements in the cases. According to the383、385、386article of criminal law, the amount of bribery crime is decided by thenumber of bribes and circumstances of bribery crime together. The supplementalelements exist in circumstances of bribery crime. In judicial practice of bribery crimecurrently, due to deficiency of public power quantization, the public power as anelement constituents in bribery crime has been hidden. After distinguishing publicpower from other circumstances of bribery crime, the supplemental element could bedefined as statutory circumstances，such as surrender, full confession, renderedmeritorious service, principal or accessory, and discretionary circumstances, such aspart harmful consequences, and criminal attitude and so on.This chapter is mainlyabout the differences between fundamental elements and supplemental elements indeciding the bribery amount, at the same time, the rule of sentencing in judicialapplication of the supplemental elements.Chapter five is about factors of bribery crime amount and perfection of the legalpenalty for bribery. Researching about amount factors must be applied to legislationand sentence, especially to the setting up of the crime and the criteria for sentencing,as the calculation of amount would make nonsense if the criminal responsibility is notclearly stated by law. By reviewing articles in criminal law on bribery, the authorexplored amount factors in bribery crime. To improve the current imbalanced judicialpractice where the punishment exceed the crime the amount factors is the core issueof this article. In one word, the key point is to generate the punishment strictlyaccording to the crime itself. At the same time, improving the legal penalty andsentence for bribery is also the objectives of the article. In order to insure balancebetween crime and punishment, these would be discussed under four headings；firstly, theory and criterion of legal penalty and sentence for bribery； secondly,application of crime factors to legal penalty and sentence； thirdly, bribery crimeamount factors and legislation in the series of crime and punishment； fourthly,bribery crime amount factors and criterion of sentencing guidelines. On the basis of precisely defining crime character and crime amount of bribery, the author discussedapplication of the legislation in the series of crime and punishment and criterion forsentencing.