| The present writer is ready to discuss two issues. One is "the object of the crime of acceptance of bribes", the other is "the subject of the crime of acceptance of bribes ". These issues are always discussed by the circle of theory and are difficult to affirm in the criminal practice. Through the discussion about those issues, the present writer wants to understand the rules of the crime of acceptance of bribes, grasp its legislative spirit and discriminate crime and non-crime.Chapter one is how to define "the job element", namely how to understand the meaning of "using the post power" of the Article 385th of the Criminal Code of China, and how to see the difference from "using the influence of the post or status" in the Article 388th of Criminal Code of China. In the criminal practice, it is very difficult to judge the nature of the action, using the post power directly, using the influence of the post or status or taking advantage to the others by the third indirectly. Based on the different definition and interpretation of the two articles, there are two opposite opinions. The present writer thinks that using the post power is to emphasize the duties and the powers and using the influence of the post or status wants to emphasize the convenient conditions upon the post or status, namely it is a kind of indirect influence. It is relevant to the post or the status, but it is not the post itself. Based on the criminal rules and the criminal practice, thepresent writer defines the fundamental meaning. "Using the post power" means the doer uses his direct power to exchange money. This power includes jurisdictional power and restricted power. The present writer thinks that we should not narrow the meaning of "jurisdiction and restriction". Beside the regulations, we should admit the realistic relationship of jurisdiction and restriction. The meaning of "using the influence of the post " is rather the convenient conditions upon the post than the post itself. This kind of relationships as follow: firstly, it is the officials of different departments of one unit; secondly, it is different levels of non-jurisdiction and non-restriction; thirdly, it is between the co-operating units; and lastly, some special relationships.Chapter two is how to understand the status of "taking advantage to the others". After evaluating the status of "taking advantage to the others" in the whole criminal construction and analyzing the present different opinions, the present writer suggests the legislator abolish relevant principle. It should not be one of the committing elements, but it can be one of the sentencing elements. As a matter of fact, except "asking for bribes" of the Article 385th of the Criminal Code, "taking advantage to others" is one of the essential committing elements of the Article 385th (the crime of acceptance of bribes) and the Article 388th(the crime of acceptance of bribes and asking for bribes). About this, there are two different ideas: one is the theory of subjective elements, and the other is theory of objective elements. The presentwriter deems that there are contradictions on both of them. So he holds the opinion that we should abolish the principle. The reason is that this rule is contrary to the object of crime, and it is difficult to prove. It is contrary to the theory of complete status of crime. The object of the crime is the honesty of post action of the state functionary, the rule of taking advantage to he others has not been necessary action to violate the object. Because you has not taken advantage to the others, but has accepted the properties of the others, it has had the harmfulness and the object of the crime. It needs not the action of taking advantage to the others, promise or subjective aim. In the criminal practice, as long as they are state functionary, use the ir luence of the post or status and accept the bribes, it constitutes the complete status of crime, no matter they take advantage to the others or not. If we regard taking advantage to the others as subjective element or object element, we may get rid of the action of only accepting the parties' properties but not taking advantage to the others, which is not advantageous to punish bribery.Chapter three part is about the subject of acceptance of bribes. The present writer deems that the subject of acceptance of bribes is the state functionary. The essential characteristic of the state functionary is: firstly, they must deal with public affairs, secondly, they do public affairs must have legal basis, thirdly, they must have legal powers and obligations. The scope of state functionary is divided into two kinds. One is referring to the public officials, suchas the person who works in state power organizations, state administrative agencies, state adjudicators, state prosecutorial apparatus, armed forces, the Party's organizations, political consultative organizations, and the other is institutions with government function or public administrative function. The other is quasi-state functionary. It includes that those who work in state-owned corporations, enterprises, institutions, and associations; those who are assigned to non-state-owned corporations, enterprises, institutions, and associations by state organizations, state-owned corporations, enterprises, institutions to do the public businesses; those who perform public powers under the law. Based upon the judicial practice, only the state functionary who is at present job can be the subject of crime of acceptance of bribes, but the retired and dismissed functionary cannot be. It relates to the purpose of the legislators. The purpose of striking the crime of bribery is to assure the state functionaries' actions be honest. With the retired state functionary leaving the job, they lost the public power. So the doer "using the post power" or "using the influence of post or status" must rather use the present position than the past position. This is coincident with the essential characteristic of the crime of acceptance of bribes. If we admits the retired state functionary commit the crime of acceptance of bribes, it means we have denied "using post power" and "using the influence of post or status" being one of the required elements of the crime of acceptance of bribes. So far as the subject of the crime of joint... |
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