Research On The Subject Of The Official Bribery Crimes

In this paper, the author conducts comprehensive and in-depth research on the subject of the official bribery crimes. The paper is about 15 million words and has seven chapters.In the first chapter "Overview of the main official bribery crimes", the author firstly defines what are the official bribery crimes, their characteristics and their similarities and differences with job-related crimes. Start from the concept of the subject of the official bribery crimes and China’s Criminal Law, the author classifies the subject of the official bribery crimes into three kinds. Compared the subject of the official, non-official and commercial bribery crimes, the author analyzes their similarities and differences. Based on the research of the United Nations Convention against Corruption, other countries’ relevant legislature provisions, and the legislation and evolution of China’s official bribery crimes, the author give a brief comment on the current legislation on the subject of the official bribery crimes.In the second chapter "define and analysis on the traditional subject of official bribery crimes’ state functionary’", the author discusses the doubts on the legislative interpretation and judicial interpretation of state functionary and theories of interpretation. Based on our political system, current situation of stuff management, criminal policy on anti-corruption and criminal rules themselves, the author analyze the reasons why state functionary is a puzzle to be define in criminal law, and provide some standards for the defining of state functionary. The extension of state functionary in our criminal law is specifically expounded, and the top issues of definition of state functionary, for example, defining the relationship between the subject of official misconduct and’state functionary’ in judicial interpretation, the status of’authorized public servants’ in criminal law. And so on. And it is also be specifically analyzed that some special subjects,such as sports referees, doctors of state-owned hospital, reporters, editors and counterfeit state functionary, can be the subject of bribery crimes or not.In the third chapter "new subjects of official bribery crime, first:close relatives", the author reviewed the extent of close relatives in department law of China and related theory. For there are different extents of close relatives in department law, the author analyzed the reason and offered that it should be unified the lawmaking on this problem. Combined considering the traditional sense of family in our country, living conditions in the present society and the basic theory of family law, the author argued that the extent of close relatives in laws of our country should be "spouse, lineal blood relatives and collateral blood relatives within two generations", and the specific contents of "parents, children, brothers and sisters" should be further defined. A preliminary design of the unified legislation on close relatives in the law system of China is presented in this chapter. Combined with these rules on the extent of close relatives, the author analyzed and defined the difficult problem on the confirmation of close relatives, some person, such as "step-parents and step-children", "step-brothers and step-sisters", "widowed daughter-in-law or widowed son-in-law who have done the maintenance obligations to her/his parents-in-law", are "close relative" or not, and "termination of blood relations in fiction of law", and so on.In chapter 4 "new subjects of official bribery crime, two:leaving state functionary", the author discusses the legislation clause on leaving state functionary bribery in other countries and ancient China, analyzes the development of the nature determination on this kind of bribery in legislative interpretation and judicial interpretation of China, sets forth dispute on the position of subject of this kind of bribery, and makes a little comments. This part focuses on the basic feature of leaving state functionary, and provides the concept and extent of it, what’s more. And some specific matters, for instance, the distinction between leaving state functionary and retired state functionary, distinction between leaving office and on transfer, deadline of leaving, are discussed and discriminated in detail.In the fifth chapter "new subjects of official bribery crime, three:intimate personnel", the author studies the origin and the legislative background of intimate personnel. The author analyzes the composition and formation basis of intimate personnel; point out that it is composed by three essential factors:emotion, trust and interests, and its precondition include blood relationship, marriage, ground predestined relationship, industry predestined relationship and emotion predestined relationship. The intimate personnel in criminal law of China are defined, and its common types are analyzed. Combined with the original intention of China’s legislation, the author discusses the principle for the identification of intimate personnel, and point out that when it comes to consider a intimate person, it should be the important standard that some one is "close to the state functionary" or not. The extent of the specific related party in the Opinions issued by the Supreme People’s Court and Supreme People’s Procuratorate, and analyzes the distinction and common between specific related party and intimate personnel. The author also analyzes the determination of the time of intimate relationship and false intimate personnel, proposes the principle should be "is/was having intimate relationship", and "had/has intimate relationship" as a complement.In the sixth chapter "the relation among subjects of official bribery crimes", the author focuses on the relations between traditional and new subjects, among new subjects of this crime. Firstly, the author discusses the problem about the new subjects of official bribery crime "close relative" and "intimate personnel", analyzes the basic feature and essential attributes of these two subjects, and find the relationship between them, and point out that they should be mature independence and not include each other. Amendment VII to the Criminal Law of the People’s Republic of China written close relations separately for two reasons:first, set an example; secondly, why the amendments want to separate it from their close relatives role is mainly because of it has demonstration factions.The author analyzes the relations between subjects in Criminal Code Article 338 (1) and (2), proposal that "leaving state functionaries and their close relatives and their intimate personnel" has a independent position as subjects, and living state functionaries probably has double identity, some proposals are given to solve this problem. The different legal status of "close relatives of state functionaries" and "close relatives of living state functionaries" is analyzed here. Exploration of national staff of the close relatives close relations between people leave national staff of the close relatives close relations of the main body of the Act of the impact on the official Bribery Crimes of traditional main new mainstay of the relationship between the separation of the National Staff national staff to analyze specific areas prospective analysis on close relations were close relatives of the bid for the use of impact accepted bribes of main and only limited to non-national staff to the close relations were close relatives national staff capacity competing in the main finds the specific methodsChapter VI, "Public relations between the main crimes of graft" Official paper discusses the traditional crime of graft between the main and new subject, as well as a new subject within the relationship. First, the new crime of bribery of a public service subject of "near relative" and "close relationship" and problems, analysis of "near relative" and "close relationship" and the basic characteristics and nature of the property, the definition of "the close relationship between people" and "close relatives "relationship, and that both the scope of independent of each other, and do not include the Penal Code Amendment (7) The reason to close relatives, listed separately, its role has two main, first, the role model prompted the second is to show that simplify the complexity. Analysis "Criminal Law" 388, paragraph 1 and paragraph 2 of the main body of the relationship between subjects that "separation of national staff and their close relatives and other persons close to the people" would have its own dominant position, while leaving national staff may be the case of double identity, and the handling of dual identity put forward its own views. Of "national staff of the close relatives" and "separation of national staff close relative" difference between the legal statuses of the analysis described. Explore "the State staff, close relatives, the close relationship between people" and "separation of national staff of close relatives," close relationship "and the dominant position of the impact of different pairs of behavior. The author discusses the crime of bribery of public service and new traditions of the main subject of the relationship between the "separation of national staff" and "national staff" in Analysis, to propose specific criteria for the distinction. Analysis of "close ties" and "near relative" and "national staff" of the competing view that to use the influence of the main body of the crime of bribery is not limited to non-national staff, proposed a "close relationship" and "near relative" and "national staff" status where the main competing identified specific ways.Chapter VII, the authors gives the suggestion to perfect the legislation of the subjects to China’s official bribery crimes. The author analyzes the controversy of the scope of the China’s official bribery crimes, and suggests the plans to perfect its legislation. And the author gives three legislature perfection advises to the "Criminal Code Amendment (7)". The first is to re-design "Criminal Law," Article 93, to achieve its accordance with the" Convention. The second is to add "foreign public officials, officials of international organizations" as the subject to official bribery crimes. The third is to build China’s official criminal charges system to bribery crimes, and the author gives two proposals.