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The Study On Sentencing For Crimes Of Acceptance Of Bribery

Posted on:2018-04-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:S W YangFull Text:PDF
GTID:1316330515989787Subject:Law, criminal law
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Acceptance of bribery is one of the most severe corrupt behaviors.Since the 18th National Congress of the Party,anti-corruption has been given unprecedented attention by the Party and the Chinese government.By sticking to an all-around anti-corruption campaign with zero tolerance,the authorities have investigated and meted out punishment on batches of bribe-taking cases,many of which involve large amount of bribery and some senior officials.Public attention has been aroused to this kind of cases since the subject involves the civil servants,in that case sentencing on acceptance of bribery becomes one of their major concerns.For a long time,unbalanced and unjust sentencing for crimes of bribe-taking has been a target of public criticism.People have called in question on judicial justice because of insufficient reasoning in the judgments which led to ambiguity in interpretation of sentencing.It is caused by an imperfect legal system,nonstandard application of law in juridical practices,and the lack of regulation in discretion in the sentencing phase.In view of this,unjust punishment for acceptance of bribery has become an urgent issue in judicial practices that must be addressed.Besides,under the new situation of the rapid economic and social development and the anti-graft campaign in full swing,a major adjustment to regulation of sentencing for acceptance of bribery has been made,according to the Amendment(IX)to the Criminal Law of the People's Republic of China.Appropriate understanding and application of the new law has become an issue worthy of careful study.In this dissertation,the author focuses on sentencing for the crime of acceptance of bribery from the following six part,including the introduction,the basic theory of sentencing for acceptance of bribery,the survey on the sentencing in judicial practice,the premise of the legislation,the judicial operation,and construction of the sentencing system.To be more specific,the introduction focuses on the background and significance,the current situation of the study,and research methods and highlights of the subject.The first chapter analyzes the basic theory of sentencing for acceptance of bribery.It defines the two concepts--the acceptance of bribery as a crime and sentencing,and makes clear the object and scope of study.The chapter stresses finding out solid theoretical basis for the sentencing through discussion about the legitimacy of sentencing,which also helps address concrete issues in the chapters below.Before analyzing the legitimacy of sentencing,the author tries to figure out the legitimacy of punishment.It is the legitimate base for carrying out prescribed punishment and sentencing in individual cases as well.The author considers the legitimate base for criminal penalty rooted in the legitimacy of retribution and the rational purport to prevent crime.Both retribution and crime prevention should be taken into account at stages varying from formulating penalty system to sentencing and punishment implementation.At the same time,differentiated evaluations should be given between retribution and crime prevention,and between general and special crime prevention.Besides,asymmetric spielraumtheorie(sentence range theory)should be introduced as a solution to conflicts between sentences based on retribution and crime prevention.On the level of responsibility,we should identify the different circumstances and adopt proper perspectives and conducts.On the level of prevention,we should master the purpose appropriately and evaluate specific circumstances comprehensively.The second chapter introduces surveys on current practices of sentencing,and analyzes problems and causes occurred in the practices.Nowadays,there are two major problems in sentencing for acceptance of bribery in China.The first one is unbalanced sentencing among crimes of bribe-taking,embezzlement and bribe-offering,as well as larceny and fraud.Another problem is the tendency to irrational sentencing,which mainly manifests as insufficient reasoning in judgments and the lack of scientific sentencing methods and standards.The problems were caused due to a faulty legal system,which involves improper setting of prescribed punishment and regulation of circumstances of sentencing,absence of a guiding role taken by judicial interpretation and cases,and the incomplete sentencing procedures.Also,the problems are partially attributed to loopholes in judicial operation.Judges usually exercise discretion ignoring regulations and are not able to closely follow criminal policies.Besides,inappropriate intervention of social influence may lead to irrational sentencing.The third chapter introduces the premise of legislation on sentencing for acceptance of bribery.The chapter discusses prescribed penalty for bribe-taking crime from the aspects of historical development,category of punishment and gradations of punishment,and then analyzes sentencing guidelines for such crimes.First,on the basis of reviewing evolution of prescribed punishment of crimes of bribe-taking,the author criticizes the application of the penalty for bribe-taking crimes to embezzlement,and rethinks the sentencing standards for acceptance of bribery.Second,by making clear the link between the amount and the circumstances of crime,the chapter presents the conclusion that bribe-taking crimes should be sentenced with more weight given to circumstances,and puts forward two alternative approaches to the practice.Also,it calls for improvement in sentencing system and operability of standards for circumstances.Third,as for the category of the punishments,the author discusses the issues of reservation or abolition of death penalty and improvement of property and qualification-related punishments.The author also conducts an in-depth study on life imprisonment which was added to the Amendment(IX).Finally,because of the complicated factors indicating social harms,the author argues that the crossover mode is more appropriate than the fit mode.The fourth chapter is about judicial operation of sentencing for acceptance of bribery,which focuses on new and lingering issues in circumstances of crimes,penalties for concurrent acceptance of bribery and dereliction of duty,and suspension of sentences.By analyzing common circumstances in the Criminal Law,judicial interpretations and case study,the thesis provides guidelines for appropriate application of circumstances of sentencing.Acts of accepting bribery and soliciting bribery should be treated differently when there are concurrent crimes of bribery and dereliction.A person found guilty of acceptance of bribery and dereliction should be given heavier punishment.On the other hand,if a person was entered a guilty plea to crimes of soliciting bribery and dereliction,he or she should be given combined punishments for both offenses.On the application of probation,we should pay close attention to standard application rather than the application rate.The author put forward corresponding countermeasure on the basis of analyzing the causes of nonstandard application of probation.The fifth chapter analyzes the institutional construction of sentencing for acceptance of bribery.To address nonstandard use of discretion in sentencing and promote justice,the chapter puts forward an idea of building a system combining standardized sentencing and the guiding function of preceding cases.The author calls for establishment of the system relying on the ongoing reforms of such respects,with efforts to formulate guiding opinions on the sentencing,carry out reform and improve sentencing procedures,and give a full play to the guiding role of preceding cases.The chapter includes discretion of principal punishments and accessory punishments(except for confiscation of property),and the application of suspension and exemption into guiding opinions,making up a system of sentencing for the crime.As for guiding opinions on sentences to life imprisonment and the following penalties,the author designed a set of universally applicable approaches and procedures of sentencing,guided by the theory of comprehension and the sentence range theory.Also,quantitative analysis is brought into quantify criminal behaviors and circumstances of sentencing in an appropriate way.Besides,the author draws in good results of the reform of standardizing sentencing and solves previous problems,as an effort to promote development and innovation of the reform.Reform and improvement of sentencing procedures is one of the highlights of the reform.It might be more appropriate to establish relatively independent sentencing procedures taking into account of the current conditions of Chinese law and justice.The current case guiding system makes little restriction in discretion and shows deficiencies in its guiding function,quantity and scale.In view of this,the chapter puts forward building a multi-layer case guiding system based on the current one,which combines the functions of guiding cases and reference cases in guiding and regulating sentencing for acceptance of bribery,and proposes a solution to conflicts between different types of sentences.In addition,the system calls for combining the case guiding system and the reform of standardizing sentencing,in order to promote standard sentencing for crimes of acceptance of bribery.
Keywords/Search Tags:sentencing for crimes of acceptance of bribery, legitimacy of criminal penalty, guiding opinions on sentencing, case guiding system of sentencing
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