A Comparative Study Of The Criminal Law Theory And Practice Of Bribery Of The Mainland, Taiwan, Hong Kong, And Macao

Bribery is a serious crime of corruption. It is a threat to national stability, andaffects the social and economic development. Every country has laws to punish thebribery. After years of legislative practice and perfect, Chinese mainland criminallegislation of bribery system has taken shape at present. But it is undeniable that thereare still some gaps, compared with the legislative requirements of the internationalcommunity and some developed countries and regions. With the rapid development ofthe social economy in recent decades, bribery occurs more and more in Chinesemainland, with the new changes in criminal means. The legislation appears to lagbehind. So Chinese mainland should be based practice in the region, and learn fromthe advanced experience and research legislation theoretical results to constantlyimprove the relevant criminal legislation and judicial. Chinese mainland, Taiwan,Hong Kong, and Macau belong to one China, and the four places are deeplyinfluenced by Chinese history and cultural traditions and social values. According to asurvey, cleanliness of Taiwan, Hong Kong and Macao regions ranked in the forefrontof the world, and it should thanks to a comprehensive legislative system. As we allknow, Hong Kong and Macao have returned to the motherland, and the cross-straitrelations are getting better. The four places have formed the pattern of "one nation, two political systems, three law systems, and four scopes of law" in the political andlegal. There are two systems of socialism and capitalism, and three law systems ofsocialist legal system, civil law and common law, and four scopes of law in Chinesemainland, Taiwan, Hong Kong and Macau in China. So it is important to study andanalyze the status of the legislative and judicial of Taiwan, Hong Kong and Macaoregions of bribery, and compare to the differences in bribery in theory and practice ofthe four places. By studying and comparing, we will know the shortcomings, and wecan do something to improve the level of bribery theory and the relevant criminallegislation of Chinese mainland.This thesis consists of two parts, introduction part and main body. Theintroduction part focuses on significance, current research, innovation andshortcomings of this thesis. For Chinese mainland, bribery is an old accusation in thenew situation, because the efforts to crack down on corruption significantly increased.So it is necessary to perfect the legislation of bribery. At the present time, thecomparative study conducted specifically for the four places of the criminal lawtheory and practice of bribery is almost empty. Even In the limited study to comparethe two or three places of the criminal law theory and practice of bribery, there aresome drawbacks, such as valuing legislation, while contempting practice, or valuingelements of crime, while contempting legal punishment, or just citing statute. So it isnecessary to specifically study and compare the four places of the criminal law theoryand practice of bribery.The main body is divided into six chapters. ChapterⅠ"the introduction to thecriminal legislation of bribery of the four places" focuses on an overall presentationand comparison of the criminal legislation of bribery of the four places. The firstchapter reviews the legislative history of bribery of the four places, and studies thesimilarities and differences. The similarities are that legislative changes are closelylinked with the social development situation, and the legislation reflects on the idea ofbribery severely punished. But the same blend of cultures and different legal systemscollide obvious signs. The second chapter introduces the current criminal legislationof bribery of the four places briefly, and compares the legislative models and technologies. Bribery is considered as a duty crime in the criminal law in all fourplaces. There are some shortcomings of the provisions of bribery of Chinese mainland,such as the single legislative model, the complicated regulations, the independentpunishment, the name of bribery determined in accordance with the different subjectof crime, and the less use of enumeration methods. But there is no urgent need toadjust and modify the legislative system of bribery of Chinese mainland severely now.ChapterⅡ"the comparative study of the subject of bribery" is to compare thesubject of bribery of the four places in legislation, judicial practice and theoreticalresearch. The first chapter compares the criteria for determining the subject of crimeof the four places. Duty is the main criteria for determining the subject of crime in allfour places. In Chinese mainland,"Engage in public service" is the main essentialelement of the subject of bribery. While, in other there places,"civil" or "publicservants" is considered as the subject of bribery. Meanwhile,"the people who haveboth duty and power" and "the people who do not have duty but have power" are alldefined in the criminal law in all four places. The second chapter compares thecontents of duty of the subject of bribery of the four places."National staff" ofChinese mainland includes the persons who exercise the public authority and thepersons engaged in the management of public affairs, and the persons who exercisethe public authority are the main subject of bribery of Taiwan. While the subject ofbribery of Hong Kong and Macau also includes some persons engaged in publicservice. In contrast, the provisions of Chinese mainland in reasonable. The thirdchapter compares the contents of identity of the subject of bribery of the four places,and studies two issues,"Identity and common crime " and "how to identify theappoint personnel". The view that non-specific subject is able to set up a joint briberyis recognized in theory and in practice in all four places. And there is dispute of howto identify the appoint personnel because of the provisions not difined cleared inChinese mainland.Chapter Ⅲ "the comparative study of the object of bribery" is to compare theobject of bribery of the four places in legislation, judicial practice and theoreticalresearch. The first chapter compares the property interests of bribery of the four places. The property interests is considered as the object of bribery in all four places.But in Chinese mainland,"property" is extended to property interests by way ofjudicial interpretation. While in other three places, the property interests is prescribedin the criminal law directly. The second chapter compares the non-property interestsof bribery of the four places. In Taiwan, Hong Kong and Macau, the non-propertyinterests is prescribed in the criminal law directly, as "improper benefits","Anybenefits" or "non-property interests". But in Chinese mainland, non-property interestsis not considered as the object of bribery. So it is not conducive to the fight against thebribery. The third chapter studies different theoretical perspectives of how todetermine the range of object of bribery, and analyzes the necessity of extending therange of object. Chinese mainland should learn from the experience of theirlegislation in other three places, and takes the non-property interests including sexualbribery into the criminal law as object of bribery.Chapter Ⅳ "the comparative study of the behavior of bribery" is to compare theobject of bribery of the four places in legislation, judicial practice and theoreticalresearch. The first chapter compares the basic way to get a bribe."Request" and"acceptance" is the basic way to get a bribe in the four places, but there are also somedifferences. For example,"Requirements" of Taiwan and "Promise to accept" inMacau both emphasize a expression of the will of bribery. The second chaptercompares the content of the duty behavior. In Taiwan and Macau, the criteria fordistinguishing between different job behavior is whether there is a breach of dutyobligations. And in Hong Kong, the criminal law specifies the various abuses. Incontrast, the provision of "advantage of his office" in Chinese mainland seems toobroad, and it is hard to understand and operate. The third chapter compares thecontent of "Consideration of the relationship" of bribery of the four places. Taiwanfocuses on theoretical discussion, and Hong Kong and Macau define it clearly in thecriminal law. But in Chinese mainland,"Consideration of the relationship" isimplicitly defined through the " advantage of his office" and "for the benefit of others"in the criminal law. The fourth chapter discusses the necessity of the reconstruction ofthe duty behavior of bribery in the criminal law. Chinese mainland should learn from the experience of the legislation in other three places, and modify " advantage of hisoffice" for "breach of duties and responsibilities" and "does not violate the duties andresponsibilities", and simultaneously delete "for the benefit of others". At last, use"return" to define "Consideration of the relationship".ChapterⅤ"the comparative study of the legal punishment and legal plot ofbribery" is to compare the legal punishment and legal plot of bribery of the fourplaces in legislation. The first chapter compares the types of legal punishment,including the freedom punishment, the property punishment and the qualificationpunishment. The scope of application of the property punishment and the qualificationpunishment of bribery is too small in Chinese mainland. The second chapter comparesthe degree of the legal punishment of bribery of the four places. Compared with theother three places, Chinese mainland has the highest degree of legal punishment, andthe largest number of the sentencing range. But the criteria for determining the degreeof legal punishment is not so reasonable. The third chapter compares legal plot ofbribery of the four places, including "reduce or waive penalties plot" and "heavier oraggravating plot". Taiwan, Hong Kong and Macau are tend to impose lighter penaltiesfor bribery than Chinese mainland. The fourth chapter gives some legislativeproposals, such as increasing the types of legal punishment, and improving criteria fordetermining the degree of legal punishment.Chapter Ⅵ"the comparative study of the patterns of crime of bribery" is tocompare the patterns of crime of bribery of the four places in legislation, judicialpractice and theoretical research. The first chapter compares the accomplished andabortive form of bribery of the four places. The criteria for judging the accomplishedand abortive form of bribery in Chinese mainland is whether there is an actualpossession of property. While, the criteria in Taiwan and Macau is whether there is aexpression of the will of bribery, and the criteria in Hong Kong is whether there is aactual act of bribery. By comparison, the criteria in Taiwan and Macau is morestringent than the one in other two places. The second chapter compares the pattern ofcrime number. In Chinese mainland, the repeated bribery is considered as continuous offense with the calculation of the cumulative amount of crime，but "a real crime"should be excluded. And in Hong Kong, the repeated bribery should be combinedpunished. In Macau, if the reason for the bribery is the same, and the bribery is fromthe same person, the repeated bribery is considered as continuous offense, Otherwise,should be combined punished. In Taiwan, because of the deleted of the provision ofcontinuous offense from the criminal law, the repeated bribery should be combinedpunished in principle. But if the continuous bribery happens in a very short time andat the same place, with continuation of criminal intent, it can be treated as one crime.