Study On The Anti-corruption Mechanism Of Criminal Law

Corruption is a global problem. But with the development of economy, Chinese is also facing the increasingly serious problem of corruption. According to "Transparency International","China belong to countries with a high corruption", this also is the public feelings in daily life. Can say, corruption has become Chinese continues to a huge stone on the road to the healthy and rapid development. Bring to effectively cope with the challenges of corruption, the international community made great efforts, the most important measure which is issued the "United Nations Anti-corruption Convention", its core content is the criminal conviction and punishment, punishment and prevention of corruption crime. This also means that the criminal law, anti-corruption mechanism has been valued and recognized by the international community. While in China, the original idea of criminal law under the single static penal measures have been difficult to achieve satisfactory corruption, antiseptic effect. But the anti-corruption criminal judicial practice also shows that, both the structure of criminal law, criminal law and penal execution which link problems, anti-corruption mechanism of criminal law functions will be affected. In this regard, thinking with a multi angle and dynamic observation for the theory of the criminal law mechanism mainly research way, happens to fit the requirements of the crime of corruption problem. From the mechanism of criminal law theory of their own development situation, through the continuous efforts of science of criminal law, it has been more mature, and is applied to every field of criminal law, to solve a lot of problems. Therefore, the mechanism of criminal law theory to explore the problem of corruption crime, and provides a new idea for prevention, the crime of corruption in the judicial practice of accountability, but also has high theoretical significance.Based on the above consideration, this paper focuses on the problem of corruption, to the theory of criminal law mechanism of criminal law circles put forward in recent years as the analysis tool, basic theory, content framework and main functions of the anti-corruption mechanism of criminal law study. In the specific research content, the literal interpretation, methods of empirical analysis and comparison, focuses on the structure of criminal law, criminal law of anti-corruption mechanism of criminal law applicable in the execution of punishment, three factors encountered in the theory and practice problems were analyzed, and put forward the corresponding improvement suggestions. Finally, the anti-corruption mechanism of criminal law as the starting point, make suggestions to improve China’s anti-corruption mechanism system, in order to practice with the rational attitude to promote the progress and development of the cause of China’s anti-corruption.The paper consists of five chapters, a total of about150,000words:The first chapter—the basic theory of anti-corruption mechanism of criminal law, is divided into three sections.This chapter is the main content of anti-corruption mechanism of criminal law theory carries on combs and analysis, provide theoretical basis and analysis framework for anti-corruption mechanism of criminal law. This chapter first introduces the background of the anti-corruption mechanism of criminal law. From the international situation, corruption is a global problem, regardless of size, strength, national system, there are more or less corruption. In China’s case, after the reform and opening up, the problem of corruption has gradually surfaced, and was growing trend. Bring to effectively cope with the challenges of corruption, the international community made great efforts, the most important measure which is issued the "United Nations Anti-corruption Convention", its core content is the criminal conviction and punishment, punishment and prevention of corruption crime. This also means that, anti-corruption mechanism of criminal law have attention and recognition in the international scope. In our country criminal law, anti-corruption mechanism in recent years also reflects the strong advantages, i.e. punishment and prevention within the framework of the rule of law, can be more thoroughly to prevent corruption. Secondly, in reviewing the creation background, carries on the explanation and definition of related concepts on the anti-corruption criminal law mechanism. First of all, is the understanding of corruption crime. In the analytical nature of corruption, that corruption crime can be defined as:the exercise of public power in violation of duties, and abuse to meet the desires (by act or omission) public power, shall be subject to criminal penalties for violations; its counterpart in Chinese criminal law, crime type should be:the crime of corruption, bribery crime, the crime of misappropriation of public funds, the crime of huge unidentified property and the crime of dividing the state-owned assets. Secondly, is the origin and Analysis on Mechanism of criminal law theory. Mechanism of criminal law theory is a criminal law concept of criminal law scholars to Professor Chu Huaizhi as representative, its connotation includes two aspects, in the form of Criminal Law refers to the operational mode and process, in essence, is the generation of functional structure of criminal law and the way of. After the analysis of the mechanism of criminal law, shall at least include three elements:the structure of criminal law, criminal law and penalty. As the core mechanism of criminal law, criminal law structure according to the "crime strict"," penalty-severe" relationship, divided into lax not severe, and strict and stern, strict but not severe and severe but not strict four types. On this basis, this paper defines the concept of the anti-corruption mechanism of criminal law. Combined with the analysis of theory of cognitive and mechanism of criminal law on the crime of corruption, summing up the basic concept of anti-corruption mechanism of criminal law, namely the corruption crimes by criminal law and penalty execution, and generating function method and process. At the end of this chapter, the anti-corruption mechanism of criminal law is composed of three elements are briefly described in order to determine the focus of the theory, and the boundary of this paper. Study on the structure of criminal law, focusing on two aspects of crime and penalty structure, namely the crime circle division and the penalty set. On the application of criminal law, focusing on the study of sentencing, solve the lighter penalty problem and lack of credibility. In the execution of punishment, mainly through the and perfecting punishment entity basis and procedural supervision defect analysis, to solve the problem of corruption crime penalty execution loose.The second chapter—structure of criminal law anti-corruption mechanism of criminal law, the content is divided into four sections.In this chapter, the crime and penalty structure as the foundation, focusing on the structure of criminal law of criminal law in the anti-corruption mechanism, and put forward the construction of perfect path direction of corruption crime criminal law structure and content. The first chapter of China’s anti-corruption criminal structure of text description. Description:a point of One divides into two. is vertically, in China established the evolution sequence of anti-corruption criminal law review, thus forming a clear anti-corruption criminal law evolution; two is in the horizontal direction, the crime of corruption related to our country present "criminal law" in the description of a crime the structure, namely the crime and penalty structure of corruption, bribery, misappropriation of public funds, a huge amount of property of unknown origin and the crime of dividing the state-owned assets are listed in detail and narration. Secondly, this chapter of our anti-corruption criminal law structure and the existing problems are analyzed. Analysis was carried out in two aspects:on the one hand at the textual level, through the analysis of the object of crime, subject of crime and subjective aspect of crime, crime structure, and the analysis of the legislative history and type of crime penalty is penalty structure, the crime of corruption in China criminal law belongs to "severe but not strict" type in the text on the view of. On the other hand, the operation level, through the study of the judicial practice, the crime of corruption in China criminal law belongs to "lax not severe" type of view in essence. Again, this chapter of the extraterritorial criminal anti-corruption structure comparison. The content relates to the "United Nations Anti-corruption Convention","Singapore anti bribery law" and "Hongkong" three prevention of Bribery Ordinance overseas anti-corruption criminal regulations of the specific provisions, the main characteristics, at the same time, through comparative analysis, the definition of foreign anti-corruption criminal structure advantages and reference significance:one is inclusive in crime object and behavior description; two is on the subject of crime categories delineated reflects widespread; three is in the objective aspect of the crime of the behavior based value oriented; four is in the crime subjective factors permit subjective presumption. Finally, this chapter on China’s anti-corruption criminal structure improvement. Through the analysis of "strict but not severe criminal essence" structure, combined with the actual requirement of current anti-corruption in China, in the perfect path, select the "structure of criminal law and strict and stern" construction mentality. Among them, the construction of crime structure "strict" embodied in four aspects:one is the reasonable definition of corruption medium content; two is appropriate to expand the subject of corruption crime; three is the principle of the presumption of the formal establishment of corruption crime subjective elements; four is the relevant category scientifically defined the crime of corruption."Severe" and the penalty structure of concrete construction, is to maintain the existing penalty at the same time, increase the relevant set fine penalty and qualification penalty.The third chapter—application of the criminal law anti-corruption mechanism of criminal law, is divided into three sections.This chapter is the main content of the sentence as the core, on the basis of empirical analysis, focusing on the problem of penalty anti-corruption mechanism of criminal law in criminal law, and put forward the applicable substantive basis and procedure construction suggestions. Firstly, the chapter makes an empirical study on the crime of corruption in China’s sentencing circumstances. Study on the process of data collection in two groups:a group of360sentencing data of China G city central provinces from2005to2010in bribery and corruption cases; a group of provincial and ministerial level in China (and above)59copies of data from2003to2012the official corruption and bribery cases. Based on the data of two groups of chart analysis, found the main existing imbalance in sentencing, probation is free, high rate, low rate of property penalty, lenient circumstances through the pan, life imprisonment or a penalty suitable standard fuzzy problems. Secondly, this chapter is to present in the sentencing crimes of corruption in China:Problems and reasons for further analysis. From the analysis of two approaches:one is in the substantive basis, is questioned because of confusion caused by the benchmark sentencing sentencing in heap and the amount of sentencing, sentencing and for determination of anomie caused by surrender, was criticized for meritorious excessive phenomenon. The two is in the sentencing procedure, due to the procedure is not perfect due to the lack of transparency, credibility of sentencing expressed concern. Finally, the chapter on the punishment of crime of corruption in China specific improvement are discussed. Corresponding with the expansion approach the problem analysis, the concrete system construction in two aspects:entity gradually in basis, performance for the reconstruction datum of corruption crime sentencing to public power value as the core, and strictly regulate the crime cognizance and application of equal punishment plot to surrender,; in procedure, performance and to improve the sentencing procedures, hearing procedures and reasoning program settings.The fourth chapter—anti-corruption mechanism of criminal law enforcement, divided into three sections.In this chapter, the implementation of focus, focus on anti-corruption mechanism of criminal law of commutation and parole, asset recovery and forgiveness of the execution of punishment, and put forward the improvement measures. First of all, this chapter is the problem of corruption crime in our country the commutation of. Through to the relevant data for C prison20082011years corruption criminals commutation and parole analysis, found that there are three problems:the fuzzy basis of parole and commutation; commutation and parole procedures of administration of commutation and parole decisions subjectively. Accordingly, the method of complete remission of crime of corruption in China the parole system, deal with the commutation and parole decisions of a balanced configuration, within the structure optimization to enhance the fairness of the commutation and parole; in addition, also can draw lessons from French credit commutation system, and enhance the enthusiasm of criminals active transformation, and reduce the corresponding evaluation difficulty, improve efficiency of commutation and parole. Secondly, the chapter on the assets of corruption crime in our country criminal measures of recovery. Because our country there are omissions in the legislative criminal assets recovery, there are obstacles to international judicial assistance, the assets of crime of corruption in China flight phenomenon is very serious. Therefore, should learn from useful experience abroad, improve our criminal confiscation and international judicial assistance system, and improve the assets recovery efficiency of crime of corruption in china. Finally, this chapter studied on Application of remission in the anti-corruption in the punishment. Pardon system is rarely used in China, but in foreign anti-corruption field has played a good role beat all. Through the investigation on the foreign experience, combined with the practice of corruption crime in our country, think that should abandon the penalty execution of arbitrary camera obscura, forgiveness, and instead of the rule of law within the framework of the pardon system, to achieve against minority, reduce corruption resistance, create a new situation of anti-corruption purpose.The fifth chapter—some suggestions base on the anti-corruption mechanism of criminal law, divided into two sections.This chapter is the main content of the anti-corruption mechanism of criminal law as the starting point, the anti-corruption mechanism in the four proposals of two aspects, namely, in the standard to improve quality, anti-corruption mechanism of criminal law making comprehensive anti-corruption criminal law, in the external environment to establish the rule of law idea of corruption and Anti-corruption correctly grasp the criminal policy. In addition to the external integration and optimization of the structural elements, anti-corruption mechanism of criminal law but also on the intrinsic quality and external form of perfecting legislation. The intrinsic quality of suggestions on how to promote the anti-corruption mechanism of criminal law, to carry out exploration and innovation in cognition and theory and method. Improving the quality of the anti-corruption mechanism of criminal law lies in three aspects:one is to keep the anti-corruption mechanism of criminal law open cognitive, expanding awareness of corruption, crime, criminal law and other issues, in order to adapt to social development; two is to attach great importance to the role of procedural justice, the legal knowledge combined with the social experience, in order to achieve the legal effect of anti-corruption mechanism of criminal law should be unified and the social effect; three is the internal balance mechanism of criminal law, full attention between legislative fuzzy and accurate, legal knowledge and social experience, judicial power and administrative power balance, to achieve the best effect of anti-corruption. In the legislative form, recommended the development of criminal integration of the anti-corruption criminal law. Through the comparison of the penal code, double track system, the integration of three patterns, chose to anti-corruption criminal legislation with the concept of integration of criminal. Mode of integration of criminal can overcome the dispersion of the criminal code of rigidity and under the double track system, through the fusion of the criminal law, criminal procedure, criminal law, further improve the efficiency of anti-corruption, balance between power so as to realize the win-win situation for rectification, balancing the public interests and personal interests.Optimization of the appropriate external environment, set up the correct idea of corruption focus and grasp the criminal policy of anti-corruption, anti-corruption mechanism of criminal law should pay attention to is the problem. We should establish the legal anti-corruption idea. According to the present more popular with "administrative homemade" theory to solve the corruption’s point of view, analysis of the existence of short board, namely, intrinsic motivation, the instability, and other systems and so confused, are likely to cause "administrative homemade" weakening the effectiveness and anti-corruption, anti-corruption mechanism of criminal law represents law anti the corruption mechanism can overcome these problems. Therefore, the core idea of anti-corruption mechanism should also be the legal anti-corruption. Recommendations focus on grasping the anti-corruption criminal policy. Our basic criminal policy of "Leniency", its intention is to "gently heavy punishment," thought, but in the application of standard fuzzy case, easy to cause the "strict loss of economy", and this in the corruption crime deposition represents more prominent. We believe that, in order to adapt to the current situation of crime and corruption, anti-corruption mechanism of criminal law "and strict and stern" requirements are matched, key to adjust to the "strict" side should the anti-corruption criminal policy, so as to maintain the coordination of anti-corruption mechanism on the whole.