| Acceptance of bribe has become one of the major crimes that Chinese Criminal Law cracks down. In 1977, the Criminal Law was revised, and the acceptance of bribe also was republished. But as we see the new provision about acceptance of bribe is still indistinct, some legal issues involving bribery haven't bee settled. It is very difficulty to determine the commission of accepting bribe in judicial practice, which directly influences cracking down on acceptance of bribe.1,Can receiving of "material gains" constitute the crime of accepting bribe?In this section, based on analyzing different countries' legislative principles on the crime of bribery, the author points out that it is necessary, objective and feasibility for state functionaries to be punished for accepting bribe in our country when they take advantage of duty to receive material gains, try to abstain profit for others, special when the amount is too large. The cause is: expanding the meaning of bribery to material gains has practical significance; there is no essential difference between material gains and property, the style of two crimes has identity in essence, except their objective expression forms have little difference; to determine material gains has practical operation, because material gains can be judged with money directly, the starting point of money can easily be got after just and reasonable estimation.2, How to determine the nature of receiving bribery in business?In this section, the author points out that receiving bribery in business couldn't be lumped together; the nature of this behavior should be determined flexibly according to the crime's specific nature, the gain's real direction, and other relative evidence. From the legislative intent point of view, some of laws, regulations and judicial interpretations contain the definite meaning that the money of receiving bribe should be recouped if the money is used in "Official Business". From the theoretical analysis of criminal activities, at first we should investigate whether the actor has the willful crime to accept bribe and wants to seize the money, then investigate whether single person occupies the property. So different crimes of accepting bribe will be dealt with in different ways. 1) If the actor asks for bribe (Extorting Bribes), or has an obvious expression for accepting bribes (Malicious Accepting Bribes), the bribe he receives can't be recouped. 2) If the actor is bribed passively, or not showing obvious expression for accepting bribes, or receiving different kinds of rebate and formality fee against the state provisions in economic business, the part he used in his business could be recouped from the bribe he received. He will be determined on the amount he really received. We judge in this way only when those conditions followed are satisfied at the same time:a) The way bribes used for "Official Business" is legal, and the account of business should be necessary for the unit's benefit.b) The action bribes used for "Official Business" is well known in the unit.c) The contends bribes used for "Official Business" have detail evidence in writing.When different cases are dealt with different methods in judicial practice, the spirit of seeking truth from facts will really be embodied. Doing like this, we not only competent the state's laws and regulations, but also don't contravene legislative intent, which is beneficial to punish corrupt and ensure judicial justice.3,How to determine the nature of the actor returning bribes before the case exposed?In this section, the author lists several expression forms or returning bribes before the case exposed, and points out that in the complicated judicial practice, different case should be analyzed in different way to determine it's nature. 1) If the actor has purpose of bribe before the event, and returns bribes actively after the event, he can't be punished for the crime of bribery. 2) If the returning occurs in the following three conditions: ---showing penitence or not...
|
PDF Full Text Request