The Crime Of Bribery And The Investigation

Bribery is a malignant tumor of the society. In order to enhance the prevention of bribery, we are obliged to make an in-depth theoretic and practical research of the crime and its investigation. The thesis is designed to analyze and look into the causes of bribery as well as the evolution of criminal legislation, its characteristic trend and components. Starting from the research conclusions of the these problems, the author studies the investigation theory and the practice of bribery on the basis of combining the theory of investigation with experience the author accumulates in the work of anti-corruption.The crime of bribery results from the abuse of power motivated by the greedy of power user. It belongs to the category of power crime. In essence, the crime is that people in power take advantage of the power for their own sake. The bribery can be analyzed from the following three aspects: human nature, power and economy. These aspects can be summed up into three points: the weakness of human nature, the absence of power control and the rapid development of economy. The first two points should be the fundamental reason while the third point functions as catalyst.From the perspective of subject provisions and legislative provisions respectively, the legislation of bribery in China has evolved from the criminal law in 1979 to the revision of criminal law in 1997. The evolution has manifested that the legislation of bribery has been becoming perfect on a daily basis and the legislators have attached increasing importance to the crime of bribery.The bribery in China has characteristics of extensiveness, power and intelligence. The subjects involved in bribery come from various fields and trades. At present, thecorruption is quite prevalent in China. The quantities and contents of bribery manifest themselves in a wide range. The bribery has the typical feature of using power in exchange of money. To bribers and criminals accepting bribes, the power plays an important role in bribery. During the process of using power in exchange of money, bribers and criminals accepting bribes show a high degree of intelligence.The trend of bribery in China shows itself in the following six aspects: the trend of bribery is going up; the professional feature has become distinct; the latent period of criminals has been getting longer and longer; the criminal of bribery continues to be promoted; the number of people involved in bribery is increasing; the criminals has improved their ability of anti-investigation; the trend of the crime has made a shift from the economical field to the political field.In essence, subjects in the bribery are typical of official business. According to the legislation spirit of the Constitution and the criminal law, and starting from regime reality in China, the author expounds the range of state organs consisting of state organs of power, administrative department, jurisdictional department, procuratorates and army. Apart from the organs, the state organs also includes Chinese Communist Party, all-level departments of eight democratic parties and all-level departments of Chinese People's Political Consultative Conference. The author has categorized the subjects of bribery. From subjective point view, the bribery manifests itself in directness and intention. The duty, in the sense of bribery, has the characteristic of being legal, direct and present. Seeking benefits for other people is a demanded promise. It is not a kind of realist behavior and result related with seeking benefits. Therefore, accepting the properties falls into the category of committing bribery. The essence of bribe lies in its connection with the duties of workers in government departments. The bribe is taken as illegal payment. The bribe in the bribery refers to property benefits. Currently, non-property benefits cannot be properly regarded as bribe. The practice of accepting the bribe can be divided into accepting the bribe and extorting the bribe. In reality, there are eight kinds of actual forms.The investigation of bribery refers to that an investigation department places a special case on file for investigation in line with the law, organizes security membersconcerned, takes proper measures, looks into the truth and decides whether or not to deliver the case to the department concerned. Presently, the working mechanism of anti-corruption is viewed in the overall situation. Practices have been implemented for many years, such as the unified leadership of Communist Party Committee and Discipline committee's role in coordinating the overall anti-corruption. The practices reflect that the power of Party is excessively concentrated in the field of anti-corruption and jurisdiction. The discipline and inspection department under the leadership of the Party plays an indispensable role in investigating bribery. As a fact of matter, the department has a grasp of commanding right, partial jurisdiction and investigation right during the process of case investigation. Consequently, the procuratorate department in charge of investigating bribery in conformity with legal provision have to yield their position to subordination, which exerts a negative effect on the investigation of bribery. As a result, The role of the jurisdiction department is degraded. This practice disobeys the spirit of rule of law and increases the difficulty of verifying statutory evidence. The legislation organ entrusts the investigation of bribery on the procuratorate department. However, the investigation of bribery is dependent on the Party Committee and guided by the leadership of the Party Committee. The phenomenon is determined by the political system in China. The combination of jurisdiction and the Party meets realistic demand of balancing the power. At the same time, the mechanism needs improving to overcome the weak points of the mechanism. The anti-corruption department of the procuratorate stills plays a major role of investigating bribery and negates the system of initial examination without legal evidence. The investigators of the procuratorate, as workers of Discipline Committee, participate in the investigation under the jurisdiction of cases. After the criminal case has been place on file for investigation, the procuratorate department should carry out the investigation independently. With improved awareness of human right and rule of law, and with the increasing complexity, intelligence and covert in the bribery, the investigation mode of bribery urgently needs to fundamentally shift from the mode of from affidavit to proof to the mode of from proof to affidavit. Collecting proof is a significant part of lawsuit. As for the evidence determining in proofing the crime, we should collect and verify evidence in reality by lawful ad scientificmethods. The mode of investigating bribery has to make an inevitable shift from the mode of from affidavit to proof to the mode of from proof to affidavit. But the two modes are designed to obtain the affidavit of suspects. Affidavit actually plays a decisive role. The author makes a research of affidavit gained by interrogation. The difficulty of investigating bribery lies in gaining proof. The introduction of defending oneself in a court case into the investigation process and positively gaining proof has become a highly valued investigation strategy. The feasibility and practice of the strategy have been discussed in the thesis.