Analasis Of Commercial Bribery-in View Of United Nation Convnention Against Coorruption

Commercial bribery which belong to the corruption became the significant issue in many countries. In October 2003, United Nations General Assembly enacted the "United Nations Convention against Corruption" in Merida, Mexico (hereinafter referred to UNCAC). UNCAC is the only legally binding universal anti-corruption instrument. The Convention's far-reaching approach and the mandatory character of many of its provisions make it a unique tool for developing a comprehensive response to a global problem. The UNCAC covers five main areas: prevention, criminalization and law enforcement measures, international cooperation, asset recovery, and technical assistance and information exchange. The UNCAC provide many different forms of commercial bribery, such as trading in influence, bribery of public foreign official, and various acts of corruption in the private sector. The conference held in Doha from 9 to 13 Nov 2009, established the review mechanism in order to assisting states to implement of convention . Under this international context, China must modify the national law so as to conform to the provision of UNCAC, which is the main purpose of writing this paper.In first part of this paper , I want to discuss the conception of commercial bribery. In my country Commercial bribery is not a crime provided in substantive law, but a general term for a class of corruption crime, mainly refers to the bribery occurred in commercial transactions. The provision of commercial bribery originated in the United States, and it was the first time that the bribery of foreign official have been regarded as a crime act in "Foreign Corrupt Practices Act" in 1970. Until the introduction of UNCAC, we have reach the finally conclusion of corruption crime in international level. Convention requires States parties adopt legislative measures and other effective measures to established as the criminal offence, which involved in the bribery of public officers, foreign public officials and officials of public international organizations, the private sector, trading in influence , and required the states parties adopt the same attitude towards the bribery and briber, which was provided detailed in the UNCAC.In the second part of this paper, from drawing some similar element form the varieties of corruption crime, including actors, behavior and subjective purpose, I intend to write the provision of commercial bribery in base of the UNCAC. First of all, the actors could be divided into active bribery and passive bribery. The former ,which differ from the latter that is the general subject, can be divided in to several forms according to the functions, which include national public officials, foreign public officials, officials of public international organizations, trading in influence and private sectors. Second, the active bribery's behavior, in addition to trading in influence, contain the directly or indirectly solicitation or acceptance the undue advantage, the passive bribery contain the three kinds of behavior, including promising, and trading in influence crime include a public official or other person abuse the real or supposed influence. Finally, the subjective purpose is the directly intention, which is the same as the corruption crime.The China's provisions of the crime of commercial bribery can be founded in the Penal Code. There are eight kinds of crime be related to the commercial bribery according to the criminal code's interpretation. Comparing the provision between China and UNCAC , there are some provisions which differ from each other, involved in behavior, trading in influence, etc. The subject of trading in influence nearly restricted to the close relatives and other person who has a close relationship, however, in UNCAC, the public officials and any other person consisted the subjects of this crime. What's more, the scope of behavior, including active and passive bribery, are too simple compared with UNCAC. In my county's penal code, there are only two forms of active bribery ,include soliciting or accepting, and the behavior of passive bribery only restricted to the giving. Finally, the definition of bribery in china is limited to property or the property interests, not include other benefits, not to mention the intangible benefit. Conversely, UNCAC adopt the conception of"undue advantage", which include the tangible and intangible benefit.This paper adopts the method of comparative analysis. Through the way of comparing the provision of China and UNCAC, in addition, reference to other international convention and national law, I have found some different points and reach the conclusion about this problem. In my opinion, under the principle of "pacta sunt servanda", our country, as the state party of convention, must take the obligations of modifying the provisions of penal code, so as to consist with the UNCAC. It is the value and innovation of this paper.