Research On The Standardization Of Conviction And Sentencing Standards For The Crime Of Accepting Bribes

The law is the most important tool for governing a country,and the rule of law is an important support for the modernization of the national governance system and governance capacity.The research on corruption crimes has become an academic frontier theoretical topic in China’s criminal law,legal science and political science.In corruption crimes,a large part of the charges are related to public property.Under the integrated promotion mechanism of "dare not corrupt,can not corrupt,and do not want to corrupt",we can strengthen the whole process management of public property through systems and scientific and technological means,plug loopholes,and achieve "can not corrupt".The crime of bribery is an exception.The source of the property involved in the case is a third person and is often one-to-one or disguised as a seemingly legitimate market behavior.It has the characteristics of concealment,multiple occurrences and diverse forms.In the current corruption cases investigated and dealt with,the crime of accepting bribes accounts for a large proportion,involving the high level of leading cadres,the large amount of crimes,the long time of concealment,and the bad circumstances,which are shocking.The crime of accepting bribes has become the main form of current corruption.In a certain sense,accepting bribes has become the synonym of current corruption.Anti corruption is anti bribery.The Central Committee of CPC has incorporated corruption governance into the basic mechanism for the modernization of the national governance system and governance capacity,and accelerated the construction of a legal system that does not dare,cannot,and does not want to be corrupt.Only by updating the theoretical foundation can we lay the foundation for the perfection of the legislative system.The setting of conviction and sentencing standards is the core of criminal law.The realization of the purpose of punishment and the manifestation of criminal law functions largely depend on whether the setting of conviction and sentencing standards is scientific and normative.The crime of accepting bribes violates the integrity of official conduct,corrupts the Party’s style and political style,and causes serious damage to the foundation of governance.It is the last bulwark for us against corruption.With the continuous efforts,Chinese laws in combating the crime of accepting bribes have become more systematic and the provisions have become more refined.The standardization of the conviction and sentencing standards for the crime of accepting bribes has become the top priority of our country’s anti-corruption rule of law construction,and has become a major theoretical topic for comprehensively promoting China’s corruption governance strategy.The operation of supervisory power has brought far-reaching influence to the criminal system of corruption and bribery in China’s criminal law.As two types of disciplinary measures against corruption,the power of supervision and the power of punishment differ in the concept of intervention,the purpose of disciplinary action,and the means used,at the same time,they are consistent in their essential attributes,value judgments,and functional roles.They are complementary and indispensable at different stages of the fight against corruption.The functional orientation of the criminal law has changed under the operation of the supervisory power.The supervisory law has become the pre-law of the criminal law in the field of anti-corruption.Under the integrated promotion mechanism of ‘three non-corruptions’,criminal law goes beyond treating symptoms and becomes an important part of treating root causes.Criminal law’s governance of the crime of accepting bribes is more prominent with Chinese characteristics.A clean and vigorous governance environment requires laws at the level of illegality and crime to perform their respective functions,to connect to each other,and to interact in a positive way.Under the combined effect of supervision power and penalty power,the criminal law has returned to its original intention and nature,insisting on doing something and not doing something in the field of anti-corruption,and the new functional orientation makes the legislation of the crime of accepting bribes face the need for connotative repairs such as optimizing the structure,weaving the legal network,and connecting the laws and laws.Under the background of the establishment of the specialanti-corruption agency and the mutual influence of the supervision law and the criminal law,a more systematic and in-depth study on the crime of accepting bribes should be conducted,and more systematic thinking should be given to the connection between the supervision power and the penalty power in the anti-corruption work,so as to better grasp the pulse of the era of criminal law for bribery crime,and clarify the proper orientation of the criminal law in the field of anti-corruption.In addition to the introduction and conclusion,the main body of the thesis is divided into four chapters.Chapter one is on problem,which puts forward the background,motivation and main problems to be solved for the standardization of the conviction and sentencing standards of the crime of accepting bribes.First of all,it introduces the history and current situation of the conviction and sentencing standards for the crime of accepting bribes in my country,summarizes the form and content of the current standards for the conviction and sentencing of the crime of accepting bribes,and summarizes the main characteristics of the development of the conviction and sentencing standards for the crime of accepting bribes in the era of legalization process: The legislation is gradually improved;while adhering to the global perspective,it adapts to China’s national conditions;the overall strictness and leniency are combined.Secondly,based on the background of my country’s supervision power intervening in the fight against corruption,it analyzes the characteristics of supervision power,the differences and consistency of supervision power and punishment power in corruption punishment,and demonstrates the influence of supervision power operation on the criminal law system.The change in the functional orientation of criminal law in the field of anti-corruption is the motivation for the standardization of conviction and sentencing standards for bribery.This paper believes that since the regulation of the crime of accepting bribes in new China,with the continuous improvement of the rule of law and anti-corruption,the standards for conviction and sentencing of the crime of accepting bribes in my country have made great progress.The two disciplinary methods have differences and more consistency at the same time.The ‘Supervision Law’ has become the preliminary law of the ‘Criminal Law’ in the field of anti-corruption,and the ‘Criminal Law’ has become an important part of addressing both the symptoms and the root causes of corruption.Based on the new functional positioning of criminal law in the field of anti-corruption,the standards for conviction and sentencing of bribery crimes face the needs of standardized reforms such asstructural optimization,weaving a dense legal network,and integrating laws and laws.Finally,looking at the current criminalization and sentencing regulations for the crime of accepting bribes in my country,there are still problems such as failure to fully reflect the social harm of accepting bribes,not fully reflecting the principle of adapting guilt and punishment,and inconsistent with the current anti-corruption criminal policy.Chapter two is on basis,which aims to find the basis for the standardization of conviction and sentencing from the root.First of all,focusing on the legal basis of the standardization of conviction and sentencing standards for bribery crime,the key to the standardization of conviction and sentencing lies in what kind of standards,returning to the legitimacy of punishment according to the theory of retribution punishment and the theory of purpose punishment,and reaching the conclusion that behavior responsibility is the basic standard and prevention purpose is the supplementary standard in conviction and sentencing of bribery crime.This paper holds that the definition of conviction and sentencing standards in criminal laws of all countries in the world at present basically adopts the viewpoint of amalgamation of retribution punishment and purpose punishment,and China’s current criminal law is also a position of amalgamation.The behavior responsibility of bribery crime is the degree to which the legal interest of bribery crime is infringed.The conviction and sentencing standard of bribery crime should correspond to the degree to which the legal interest is infringed.At the same time,it is a supplementary standard for conviction and sentencing of bribery crime based on the purpose of prevention.The post-crime plot of bribery crime is particularly concerned by the criminal policy.Secondly,paying special attention to the realistic basis of the combination of conviction and quantification in China,this paper makes qualitative and quantitative analysis on the conviction and sentencing standards of bribery crime,and demonstrates that the balance between crime and punishment is the standardized requirement of conviction and sentencing standards of bribery crime.The qualitative factor is the basis for the formation of the special chapter of corruption and bribery crime in China,which determines that the focus of regulation of bribery crime is different from other crimes,and determines the basic construction of the constitutive requirements of bribery crime and the allocation of statutory punishment.The amount of crime has the explicit characteristics stipulated in the law,and it is compatible with the degree of infringement of the legal interests of bribery,and the correspondingpunishment presents a certain level.Sentencing standards are the unity of qualitative standards and quantitative standards.China’s current criminal legislation mode combining qualitative and quantitative standards has certain normative advantages.The scope of punishment of bribery crime should be defined according to the quality of crime,and the penalty limit of bribery crime should be framed according to the quantity of crime.Among them,the quantity of crime that represents the quality of bribery crime should be fully representative,and the public power to form consideration in the power and money transaction of bribery crime should be fully evaluated.Different types of bribery should be matched with different conviction and sentencing standards.Thirdly,from the perspective of legal basis and realistic basis,we should grasp the scale of conviction and sentencing of bribery crime,implement the principle of accountability,the principle of integrated evaluation of crime quality and crime quantity,the principle of prohibiting repeated evaluation and the penalty application strategy of ‘light and heavy’,scientifically delimit the scope of bribery crime circle and establish the standard of accomplished bribery.Chapter three is on factors.From the micro indicator level,it analyzes the amount factors and plot factors that affect the conviction and sentencing of the bribery crime under the spotlight.Combining the legal basis and practical basis of the previous chapter,it classifies the two indicator factors and points out that the two factors are not balanced and standardized in the allocation of the sentencing standards of the bribery crime.Focusing on the amount factor of bribery crime,this paper analyzes the position and role of the amount factor in the conviction and sentencing of bribery crime,the relationship between the cumulative amount and the cumulative amount of crime,and inspects and evaluates the amount standard in the legislation of bribery crime in China.Focus on the circumstances of bribery crime,and point out the inadequacy of the provisions on the circumstances of bribery crime in China by dividing the circumstances indicators that reflect the responsibility punishment and the circumstances indicators that reflect the preventive punishment.This paper conducts a normative review of the ‘amount plus circumstances’ index stipulated in the Criminal Law Amendment(IX),points out that the current unitary auxiliary standard has certain rationality,but the allocation of the amount and circumstances index is too extensive,and puts forward the legislative improvement direction of correctly handling the relationship between the amount and circumstances.This paper argues that the amount factor in the conviction and sentencing of bribery in the index advantage and the status of the constituent elements is beyond doubt,while the amount standard presented by the law of diminishing marginal effect reflects the limitations of excessive dependence on the amount factor.Compared with the dependence on the amount factor,the legal circumstances of the act of public power are not classified and quantified enough in the circumstances of the bribery crime in China,and the prevention circumstances are regarded as the conditions for upgrading the legal punishment,and the act of public power intersects with the crime of dereliction of duty.The current ‘amount plus circumstances’ indicator has changed the regulatory thinking of China’s traditional criminal law on the crime of bribery.However,the indicator system designed by judicial interpretation has some problems,such as halving the amount and the circumstances are not equal,the amount and the circumstances configuration have the risk of repeated evaluation,and the amount and circumstances indicators are not well connected.It is necessary to build a coordinated,differentiated and accurate corresponding relationship between the amount and the circumstances.Chapter four is on path.In view of the new situation and new problems faced by the management of bribery crime,it proposes that the standardization of conviction and sentencing standards needs to be finally resolved through legislation itself.The specific path needs to explore the solution to the problem of anomie under the Chinese model,to solve the independence problem,the conflict of laws,and the internal level problem of the bribery crime;Seeking to maintain the basis of standardization,solving the problem of judicial interpretation to draft laws,and the problem of substantive elimination of the elements of ‘seeking benefits for others’;It seeks to optimize the indicator factors,solve the problems of the coincidence between quantitative indicators and the essence of bribery,the expansion of plot indicators and the repeated evaluation between indicators.This paper believes that,first of all,we should standardize the structure at the macro level,which is the basic work to standardize the standard of conviction and sentencing of bribery.The layered accusation system of bribery crime should be established from the chapter structure,the special chapter on corruption and bribery crime should be set up according to the legal interests of integrity,the punishment standards for bribery of corporate personnel should be unified,and the bribery crime charges should be classified and arranged;The structure of crime and punishment is separated from the standard of conviction and sentencing of corruption crime,and the core indicators of conviction and sentencing of bribery crime are paid attention to formally,so as to correct the deviation of the balance between crime and punishment of bribery crime in essence;In terms of the structure of the constitutive elements,consideration replaces the setting of profit making elements,which makes the constitutive elements of bribery more in line with the essence of bribery,more conducive to the realization of the purpose of punishment,and more convenient for practical operation.Secondly,the middle level should realize the standardization of connection with other laws.Based on the principle of unity of legal order,and in the realistic context of the integrated legislation of crimes and penalties by the Criminal Code in China,we should adhere to the criminal law as the only basis for the conviction and sentencing of bribery crimes in China,to reconcile the conflicts between bribery crimes and other laws in terms of subject,lenient punishment provisions,limitation of prosecution,etc.It is suggested that the subject of bribery crime should adopt the concept of public officials,confirm the leniency of confession and punishment in the general provisions of criminal law,cancel the special leniency of bribery crime,and include the supervision filing into the prescription system.Finally,at the micro level,we should standardize the indicators,reconstruct the indicator system of bribery crime from the perspective of influencing conviction and sentencing,establish the dual indicator of amount and circumstances,point out the necessity of a certain amount as the indicator of bribery crime,and no longer use the halving of amount as the basis of conviction;Establish the one yuan sentencing indicator of the circumstances,and suggest taking huge amount of bribes,asking for bribes,repeatedly accepting bribes,important fields or positions,repeatedly or seriously violating duties and obligations,or causing serious consequences as the statutory circumstances of punishment promotion;The provisions on combined punishment for several crimes of bribery and dereliction of duty were abolished,the intertwined problem of bribery and dereliction of duty under the new indicator system returned to the nature of implicated crime,and the circumstances of dereliction of duty were fully and comprehensively evaluated on the conviction and sentencing of bribery crimes.