The Perfection Of Chinese Criminal Legislation In View Of The United Nations Convention Against Corruption

This paper is based on the content of the condemnation and the mechanism of law enforcement in the Convention. Moreover, it combines the practical needs of the struggle against corruption in China, and makes explanation and discussion from three parts, accordingly offers the assumptions for the perfection of Chinese Criminal Law mechanism against corruption. The main contents are as follows. Chapter one is the summary of corrupt crimes. Explanation is made from three aspects in this chapter. The first aspect is the definition of the concept of corruption. The author of this paper believes that corruption is the behavior, in which the executor of public right violates the applicable scope, tenet and aim, and takes profits for himself or faction by using public right, so that national interests and social order are seriously violated. The second aspect is the definition of the concept of the crime by taking advantage of duty. In the process of the action of duty, some civil servants or men in public life in other social societies or enterprises and institutions take advantage of their duty, violate their rights, or do not fulfill or correctly fulfill their duty. The floorboard of those criminal activities, which violate the needs of duty, Criminal Laws and deserve punishment, is the so-called crime by taking advantage of duty. The third aspect sums up the present six traits of Chinese corrupt crimes. In light of the rampant corrupt crimes, and in order to enforce international cooperation to form connecting forces to beat corrupt crimes in worldwide, China signed the United Nations Convention against Corruption in December 10th, 2003. The convention is a challenge to Chinese Criminal Law against corruption, and our law needs modification and perfection. Chapter two is to Perfect Chinese Criminal Law and Combine with the Convention. Explanation is made from three aspects in this chapter. The first aspect is the legislative perfection of the crimes of bribery. Firstly, it is to expand the content about bribing of Criminal Law. Namely, the content should include all the tangible and invisible illegitimate benefits, which meet people's needs and desires. In this way, the stipulation can adapt to the need of the ever-changing criminal means under new conditions, at the same time, it can link up with the Convention. Secondly, it is to expand the subject range of the bribees. I think, in order to keep unanimity with " convention ", " national staff members " should be changed into " the national civil servant ", and expand the subject range of the bribery crime at the same time, so long as the civil servant asks for or receives the improper advantage directly or indirectly for himself or others or entity, bribery crime is made up. Thirdly, it is to cancel the subjective purposes of bribery crimes. I think, we should cancel the purpose that bribers " seek the illegitimate benefits " when revise the crime of bribing according to " convention ". That is to say, so long as it is proved that the bribe and the duty of the actor are causatively related, the crime is formed. Fourthly, it is to cancel the composition condition "takes advantage of post " of the bribery crime. Different understandings about this legislative stipulation exist among experts and scholars at present, in addition "convention " has not required actors to take advantage of post either, so the stipulation should be canceled. The second aspect is the expansion of the constitutive elements of laundering. Firstly, expand the upper reaches crime of laundering. Secondly, modifies the concrete behaviors of laundering. At present, the comprehensive modification of laundering according to "Convention"is immature in practical conditions and legislative conditions. In order to keep the stability of Criminal Law, I think, the corrupt crimes listed in "Convention"can be stipulated as the upper reaches crimes of laundering, based on the reservation of the original 4 kinds of upper reaches crimes. Moreover, the behaviors, of which the actor knows that the property is the incomes of crime, and shelters, shifts , conceals, purchases or sells the property, separated from article 310 and article 312 in " Criminal Law ",and take the behaviors as crimes of laundering. The third aspect is the legislative perfection of other corrupt crimes. Firstly, improve the legal punishment of the huge property of unidentified sources. According to the intrinsic traits of this behavior, the author thinks that the crime should belong to the national staff members who do not fulfill the property declarative duty, and it is a kind of pure and unadulterated criminal form to make the illegal property increase, therefore, to change this criminal name into refusing to explain the huge property of unidentified sources and perfectthis article to embody the criminal essence. Secondly, perfect the constitutive elements of corrupt crime and the crime of misappropriating public funds, expand the objects for them and Cancel the three kinds of behaviors of appropriating public funds. Chapter three is to perfect Chinese Criminal Law by Combining with the Convention Explanation is made from three aspects in this chapter. The first aspect is the enforcement of the protection for witnesses and informers. I think, the current Chinese Criminal Law has no definite stipulations about the protection for the witness'personal materials. So that people are unwilling to appear in court to testify in practice, only depending on witness' testimony, the degree of the evidence is reduced. In addition, our country has not offered laws and regulations to protect the informer, and the informer does not have a clear legal status in concerned lawsuits. Therefore, we should draw lessons from regulation of the " Convention " , and " the witness protection law " and " the informer protection law " should be made. The second aspect is the establishment of the system of default judgment to the corrupt crimes. I think, the most essential condition for assets return in the " Convention " is that the requesting state should offer last judgment for the requested state. However, as to our country, the system of Criminal Law does not allow the judgement by default at present. The most realistic difficulties and general problems exist in practice. For instance, when our country requests other countries to confiscate and return the corrupt assets of our country, it is difficult to offer effective judgment for return conditions to the requested state, before the suspect fleeing with the fund is extradited to homeland and accept the trial. Therefore, without the system of default judgment, the greatest obstacle to the return of the corrupt assets transferred to other countries may be brought about. I think, the applicable conditions for default judgment should include the following content: firstly, the default judgment of the corrupt crimes can only be suitable for the 11 corrupt crimes that the " Convention " stipulates; secondly, the judgment is possible on terms that the corrupt criminal failed to be extradited to homeland to accept trial, on condition that the corrupt crime facts can prove to be true through investigation; moreover, the agreement of judicial aid should be made with the requested state and the judgment shouldbe accepted and executed by the two parties. Different from the default judgment stipulated by the Civil Procedural Law, this default judgment is only applicable to corrupt crimes, because it needs the contracting states'mutual acceptance and execution of the judgment made by the other country. The third aspect is the perfection of the way of testification and the burden of proof in corrupt crimes. I suggest the addition of the way of testification and the burden of proof of the subjective conditions for corrupt crimes in Criminal Procedure Law. It should be clearly stipulated that when the reasonable suspect for corrupt crimes can not be eliminated, permission for the defendant to propose effective evidence to defend by way of deductive method of testification according to the objective reality. And when the defendant can not propose effective evidence, the inferred fact forms the crime.