Reflection And Reconstruction Of Crimes And Punishments Structure Of Corruption Crime In China

Corruption crime in China has become a chronic social problem.At present,China's anti-corruption has gradually formed an overwhelming trend,and the focus of anti-corruption has gradually changed from "governance" to "governance".As an important part of the system of anti-corruption,criminal anti-corruption has always been a powerful means of rectifying the administration of officials.In terms of criminal legislation,at present,China's corruption crime has entered a very frequent period in terms of the addition of charges,the amendment of constituent elements,and the adjustment of the allocation of legal penalty.The research on corruption crime in the academic circle also presents a prosperous scene of "random flowers gradually attract the eyes".However,behind the prosperity of the appearance,there are hidden defects in the construction of basic theories of corruption crime,discord in the criminal structure of corruption crime,and left branch The hidden worry is that the scientific and reasonable disposition of crime and punishment of corruption crime in criminal legislation has been criticized by the theoretical and practical circles,and the judgment results of a large number of corruption crime cases in criminal justice have been frequently doubted by the public.In view of this,it is necessary to use the thinking of rule of law and the way of rule of law to carry out criminal anti-corruption,which is the inevitable requirement to consolidate and develop the overwhelming victory of anti-corruption struggle.The definition of the concept of corruption is the cornerstone of the research on the structure of crime and punishment of corruption crime,and the scientific definition of the connotation and extension of the concept of "corruption" is the logical premise of effectively carrying out criminal anti-corruption.Through the analysis of the dual framework of "semantic pragmatic" of the connotation of "corruption" and the analysis of the core elements of corruption,this paper attempts to amend the traditional classical definition of corruption: to eliminate the limitation of "public officials" or "state functionaries" of the subject of corruption;to expand the "public power" of the object of corruption to "power",and to integrate it into the scope of the object of traditional corruption The elements of "private power" bring the abuse of private power into the category of corruption.In order to realize the systematization of a large number of corruption crimes and fundamentally solve the problems of numerous and disorderly charges in the corruption crime system,this paper classifies the corruption crimes into self type corruption crimes and transaction type corruption crimes according to the different behavior modes of corruption.No matter how diverse the specific ways and means of corruption,self corruption andtransactional corruption are still the most basic forms of corruption.Any new type of corruption can be reduced to the two basic forms.The main difference is that the self type corruption crime is "power chasing interests",such as the typical corruption crime,misappropriation of public funds,official occupation crime,misappropriation of funds,etc.,while the transaction type corruption crime(except for asking for bribes)is mainly "pursuing power for interests",such as the typical bribery crime,bribery crime,using influence bribery,etc.At the same time,the transaction type corruption crime can be further divided into bribery type corruption crime and bribery type corruption crime.The allocation of crime and punishment of corruption crime is not the result of lawmaker's willful behavior,it must be controlled reasonably.The situation of corruption in different stages affects the continuous revision and improvement of anti-corruption criminal legislation.Whether the structure of crime and punishment is reasonable or not is one of the important signs of the maturity of criminal law in a country.At present,to improve the criminal structure of corruption crime in China,we should first update the concept of criminal law,from "policy type" to "legal principle type",from "fragmentation" to "systematization",from "response type" to "endogenous type",from "strict but not strict" to "strict but not strict".The justification of punishment should adhere to the principle of "combining retribution with punishment",retribution is the main basis for the justification of punishment,and prevention is the secondary basis for the justification of punishment.There is a conflict between the values of the theory of retribution(absolutism penalty)and the theory of objective penalty(relativism penalty).The reasonable way to resolve this conflict lies in the separation of the legislative and judicial stages,that is,the criminal legislation takes the retributive value idea contained in the responsibility penalty as its target,and the criminal justice takes the utilitarian value idea advocated by the prevention penalty as its purport.The theory of normative protection purpose,the theory of legal interest and the theory of social harmfulness are the important theoretical resources that run through the system of corruption crime and reconstruct the structure of crime and punishment of corruption crime in China.They are also the theoretical foundation that guides and restricts the criminal legislation and criminal justice of anti-corruption crime.The construction of crime and punishment system needs to start from the purpose,and the construction of behavior punishability needs to fully consider the purpose of normative protection.Through the macro understanding of the purpose of normative protection of corruption crime in China,the mid view consideration of the theory of legal interest of corruption crime,and the micro exploration of law and Economics on the social harmfulness of corruption crime,the theoretical basis for the reconstruction of the criminal structure of corruption crime in China is laid.The purpose of normative protection of corruption crime is the distribution justice of public resources,including the distribution of all social resources including material,rights and development opportunities.There are a series of either or dilemmas in the traditional theory of legal interest of bribery,such as the theory of honesty,the theory of normal management activities of state organs,the theory of justice,the theory of trust,the theory of non buying and the theory of typed legal interest.In the transaction type corruption crime,the damage of social distribution justice includes two aspects: the corrupt interests obtained by the briber and the improper interests obtained by the briber.Correspondingly,the legal interest of transactional corruption crime should include two aspects: "forbidding unjust gain in duty or duty behavior" and "equal opportunity in the distribution of public resources".The legal interest of self corruption crime is the ownership of public property(including the power of possession,use,income and disposal).The legal interest of "integrity" is not the legal interest with independent value in the self-organized corruption crime.The level of integrity depends on the degree of damage to public property.Under the dual system of corruption and bribery in our country,the problems of "the same punishment and the different harm" and the substantive differences of the infringement of legal interests,the illegal connotation,the mode of crime formation and the degree of responsibility determine that the crime and punishment structure of corruption and bribery should adopt the separation system.Based on a large sample of2097 criminal judgments,it is found that the judicial experience and law of "the penalty of corruption is significantly higher than that of bribery" exist in the judicial practice of our country,which reveals the unbalanced disadvantages of "the same punishment and the different harm" under the "combined system" legislation,and then puts forward the theoretical proposition that "the legal penalty of corruption and bribery should be separated".At the same time,the criminal structure of bribery crime and bribery crime in China's criminal legislation is in conflict with each other,which reflects the legislators' uncertain governance strategies for bribery crime.The structure of the crime and punishment of bribery should study the particularity of the compound behavior structure and the compound legal interest structure.Through the distinction between the act of accepting money and the act of seeking profit,the consideration of the formation mechanism of the crime of bribery and the reference of the legal principles of the instigator and the executor in the joint crime,this paper reveals the illegality and the degree of responsibility of the bribery and the act of accepting bribes,and fundamentally eliminates the differences in the punishment strategy and the structure of the crime and punishment of the bribery corruption crime.Through the reflection and Deconstruction of the self type corruption crime,the transaction type corruption crime,the bribery type corruption crime and the bribery type corruption crime,this paper puts forward the construction path of the corruptioncrime.In the transaction type corruption crime,the essential elements of "seeking interests for others" should be eliminated,and the category of "bribery" should be reconstructed and typed.We should take the mode of "paying equal attention to both the amount and the circumstances" for the bribery corruption crime,and put forward the basic idea of constructing the elements system of the bribery crime.The legal punishment of bribery crime should adopt the mode of "basic punishment + special punishment",take "bending the law and accepting money" as the "basic crime" of bribery crime,and put forward the feasible scheme of legislative modification of the crime and punishment of bribery crime.In the self corruption crime,through the doctrinal restriction of the subject and the type of the corruption crime,we can relieve the questioning and questioning of the "powerful criminal law".The death penalty of self corruption crime should be abolished from judicial control to legislation.In the construction of the crime and punishment structure of the bribery type corruption crime and the bribery type corruption crime,it is proposed that the asymmetric crime structure of the bribery type corruption crime and the bribery type corruption crime should be adhered to;the special surrender system of the bribery type corruption crime should be established;the reasonable crime and punishment steps of the bribery type corruption crime and the bribery type corruption crime should be set as:(bending the law)taking bribes > taking bribes ?(not bending the law)Bribery,that is,in the bribery crime,in addition to(not bending the law),the crime of bribery should be more important than the crime of bribery in principle.Mature systematic research should follow the dual requirements of integration and purposiveness.The goal of the system integration of the crime and punishment structure of corruption crime is to avoid the conflicts and contradictions among the norms in the order of corruption crime law and to ensure the stability of law.The reconstruction of crime and punishment structure of corruption crime can be connected and integrated with the existing criminal law system.At the criminal justice level,it can effectively guide many difficult,complex bribery types and other corruption crimes in the judicial practice.It is the justice of difficult problems,such as the recovery of legal interests,the situation of taking bribes after the fact,the situation of emotional investment,the accomplished form and the number of crimes of transactional corruption,and the concurrence of self corruption and related property crimes We should provide enough explanatory power and theoretical support.