Some Issues On Bribery

Bribery is the malversation of public functionary's duty and the outstanding representation of abusing power for personal gain. Nation has sternly meted out punishment to many great crimes of accepting bribes according to law, but many bribery malversations with embezzlement and bribe taking for the representation still exist, that is correlative with the absence of the criminal legislation of punishing the bribe acceptance. This paper discusses several problems superficially, such as "the object of bribe acceptance", "the use of job-convenience", "the bribery connotation"and "seeking profit for others", and puts forward some suggestions for perfecting the acceptance of bribe legislation for the purpose of punishing the crime of accepting bribes and promoting the honest and clean government construction. Chapter one On the object of bribe acceptance The traditional standpoints think that the object infringed by the crime of accepting bribes is normal management order of the national organization. But some scholars think that the object is the ownership of public and private property, the normal development of socialist economy and the normal activities of the State economic management. Currently most scholars consider that the object infringed by the crime of accepting bribes is the cleanness of the government staff's action. The author agrees with the cleanness theory which is based on the theory of not being bought off. The reasons are as follow: Firstly, for the sake of protect legitimacy and fair of the art of duty's ,our must guarantee the act of duty's theory of not being bought off. Secondly ,the theory of not being bought off comprises two aspects: one is the act of duty's theory of not being bought off itself; the other is the trust that citizens put in the act of duty's theory of not being bought off. Under the constitutional order that the criminal law prevent the act of duty from being bought off and citizens put their trust in the theory of not being bought off for the act of duty, as long as the government staff barters the act of duty for property, he does harm to the act of duty's theory of not being bought off. As long as the government staff promises others to put in practice when he accepts property, he does harm to the trust that citizens put in the act of duty's theory of not being bought off. Thirdly, that the cleanness of the government staff's action is the object of bribe acceptance accords with the legislative intent of this crime. Accepting benefits indicates directly that the government staff can be bought off, namely, corrupted. So the criminal law can prevent normal management order of the national organization from being infringed by protecting the act of duty cleanness. Fourthly, it can reflects subjective characteristic of mental of take bribe. Chapter two On the use of job-convenience Some scholars think that the use of job-convenience means the use of current job-convenience and doesn't include the use of others'job-convenience or the use of future and past job-convenience. Some scholars think that the use of job-convenience includes the use of personal and others'job-convenience, and should includes not only the use of current job-convenience but also the use of future or past job-convenience under some precondition. Some scholars think that if the property that the government staff member accepts or asks for is correlative with his duty, we can determine that he is on the use of job-convenience. Some scholars think that on the use of job-convenience means that the actor directly uses his authority or some facility which is directly correlative with his duty, namely, the actor does not directly use his authority, but he uses some convenience which is correlative with his authority and status. The author agrees with the point of view that the use of job-convenience means that the actor takes advantage of authority or some facility correlating with his duty. The reasons are as follow: Firstly, seeing from the essence, the use of job-convenience in the crime of accepting bribes emphasize particularly on public right in authority activity, such as: decision-making, decision, examine and approve and so on. Secondly, the use of job-convenience comprises two forms, one is making use of authority, namely, the actor directly uses all kinds of powers,which administrate, handle and is in charge of money, things or personal matters among his duty range. This form emphasizes the substantivity in authority and money business or authority and things business. The other is making use of some correlative convenience, namely, the actor does not directly use his authority, but he uses some convenience which is correlative with his authority and status. This form embodies the remoteness in authority and money business or authority and things business. Chapter three The connotation of bribe Some scholars think that our country consistently carries out the criminal policy of that punishment and leniency are combined together, which decide the determination of bribe acceptance can be controlled in a proper range and if the non-property benefits are regarded as bribe, the punishment range will be extended. Some scholars consider that we should extend the bribery range and don't restrict it into property. Some scholars think that the stipulation of current criminal law is too strait for property in the crime of accepting bribes. As the object of crime in bribe acceptance, the property should possess corporality benefits and comprise not only the property which exist with objective form but also other labor services containing corporality benefit. Some scholars consider that bribe is property and doesn't comprise other rights and interests. Some scholars think that, at present, bribe should be understood as property benefits, namely, which should comprise both money and other corporality benefits. Some scholars think that the scope of bribe should be extended to all benefits comprising property, property benefits and non-property benefits which can satisfy people's demand in spirit and material. The author agrees with that our criminal law extend the object of bribe acceptance to some non-property benefits. The reasons are as follow: Firstly, seeing from the bribery essence and harm effect, that we restrict bribe to property isn't proper. In fact, we not always buy off government functionary with property and some government functionary abuses their powers not only for property. The fact proves that the losing degree caused by illegal benefits without property is not always less important than that caused by those benefits with property.Secondly, seeing from the need of protecting the government staff's cleanness, this provision doesn't distribute. If the criminal law enacts the crime of accepting bribes for the purpose of protecting the cleanness of the government staff and prevents them from being bought off, all things with that we can buy off the government staff can be regarded as the bribe. Thirdly, the crime of accepting bribes isn't the crime of disseizing property, the law needn't regard a definite amount referring to property as the only convicting or exercising discretion in sentencing basis for the crime of non-disseizing property, according other condition the law also can definite the infringed degree of the act of duty cleanness. The bribery content of non-material benefits can not bring insurmountable obstacle for the determination of this crime. Chapter four To seek profit for others In our country's criminal law field, there are affirmative theory, negative theory and reconstitutive theory on the location problem of "seeking profit for others"in the constitutive requirements of bribe acceptance. In affirmative theory, there is a controversy between the object requisite theory and the subject requisite theory, and there are classifications of old object requisite theory and new object requisite theory in the object requisite theory. The theory of old object requisite considers that "seeking profit for others"begins with commitment and ends up with realization, which is a kind of action. But the theory of new object requisite considers that the government staff's action can constitute the crime of accepting bribes as long as they promise to seek profit for others and needn't some actual action, namely, the action can constitute the crime of accepting bribes as long as they promise to seek profit for others. In the theory of subject requisite, people think that seeking profit for others only is the subject requisite and isn't the object requisite because it is only a kind of subject mental attitude and isn't a kind of object action. The reconstitution theory considers that the basic controversial reason of "seeking profit for others"in the crime of accepting bribes is that some deficiency exists in the criminal law, namely, the quantitative factor is introduced into the qualitative category.The author agrees with the negative theory and the reasons are as follow: Firstly, this provision doesn't assort with the object of this crime and can't embody the criminal essence. The object of this crime is the cleanness of the government staff's action. The criminal law enacts the crime of accepting bribes in order to protect the government staff's cleanness from being infringed. The legislative intent is not for the purpose of guaranteeing the accomplishment to the bribery business. Secondly, this provision dissevers the proper character of "the use of job-convenience". "seeking profit for others"is included in "The use of job-convenience". As long as the actor receives others'article of property, "taking advantage of job-convenience"must be for the sake of "seeking profit for others", at the same time, "seeking profit for others"must adopt the manner of "taking advantage of job-convenience", which is the foregone conclusion determined by their proper character. Thirdly, this provision brings on the difficult of judicature determination. The condition of bribe acceptance is very complex, which is diverse from each other according as different people or things. But there is this provision of "seeking profit for others", the act can not compose bribe acceptance for lack of the legal behavior requisite.