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On Defects And Perfection Of Legislation On The Object Of Committing Bribery

Posted on:2006-09-06Degree:MasterType:Thesis
Country:ChinaCandidate:C W ZhaoFull Text:PDF
GTID:2166360182957003Subject:Law
Abstract/Summary:PDF Full Text Request
Bribing, as one of the most traditional phenomena of corruption, has been cracked down on by the governments of all the countries for a long time. Since the founding of the People's Republic of China, the Communist Party of China and the government has been attaching great importance to strike on the bribing and continuously perfecting the legislation on the bribing. However, the briberies of various property-related interests and non-property-related interests have not been listed in the range of legal punishment in reality because of the influence of the idea of the traditional criminal law that the object of committing bribery is only property. Due to the defects existing in the criminal legislation, many ugly performances of gaining the property-related interests and non-property-related interests by power cannot be punished and some persons take the chance to wantonly gain the illegal interests by use of the defects in legislation. If the legislation is not revised and perfected in time, these phenomena will certainly be spread and give extremely bad impact on the people and even the image of the Party and the government in the heart of the people. In this paper, starting from the general theory of the object of committing bribery and based on the criminal legislation of the relevant countries, intensive research is given on the reposition and perfection of the object of committing bribery. It mainly contains the following four chapters. In Chapter 1 of the paper, started from dealing with the definitions and development of the bribing and the object of committing bribery, the concepts of the bribing, the object of committing bribery and the subject committing bribery, the development of the regulations on the object of committing bribery of the People's Republic of China and the definition of the object of committing bribery of the current criminal law of our country are introduced, and then it is concluded that the range of the object of committing bribery of the current criminal law of our country defined in legislation refers to only "property". In Chapter 2 of the paper, what is dealt with is that the occurrence of the new bribing forms shows the defects in the current legislation on the object of committing bribery, with some new bribing forms in the judicial practice introduced in details. The current bribing forms are summarized as the following three main forms. One is property, the other is property-related interests and another is non-property-related interests. Especially, the bribes of property-related and non-property-related interests have tended to prevail in recent years, which brings about severe damages to the country and society. Due to the occurrence of the new bribing forms, the main defects shown in legislation when the criminal law defines the object of committing bribery as property are as follows. In theory, the characteristics of the crime are not obvious and it cannot be represented that the nature of the crime is the damages of performances to society. In practice, No evidence of controlling of the performances of gaining interests by authorities has been established .The relations to other relevant laws such as the Law Against the Unfair Competition and the UN Conventions Against Corruption, etc. are not harmonious and the legislation lags behind the current practice of committing bribery of our country. Therefore, serious damages are brought about, which directly influences the healthy development of anti-corruption and the trust of the people in the Party and the government. In Chapter 3 of the paper, the realistic significance of extending the range of the object of committing bribery is analyzed. The three main ideas popular in the research on the object of committing bribery in the current sector of law are first presented, which mainly include the theory of property, the theory of property-related interests and the theory of interests as well as the ground for the three theories. And then a comprehensive analysis is made on the limits of the theory of property and the theory of property-related interests defining the range of the object of committing bribery as property and property-related interests, which is represented as follows. Firstly, both the theory of property and the theory of property-related theory do not realize the social damages of the bribing of non-property-related interests. The main element determining the nature of a crime in the criminal law is the social damages of a performance. There are no fundamental differences between taking property as the object of committing a crime and takingproperty-related and non-property-related interests as the object of committing a crime in bribes. All these bribes can result in serious social damages. Secondly, the theory of property and the theory of property-related interests cannot correctly reflect the legislative spirit of the current criminal law concerning the bribery. The purpose of the criminal law regulating the bribery is to maintain the purity of the national governmental officials by cracking down on briberies. Since the nature of the bribery is the purity of the governmental officials, it should be taken as the criterion whether the purity of the governmental officials is damaged instead of whether the object of committing bribery is property, property-related interests or non-property-related interests, and there is no fundamental difference between the three objects in meeting the demand of a person. Thirdly, both the theory of property and the theory of property-related interests cannot fully and correctly reflect the realistic situation of briberies of our country. If it is insisted that the object of committing bribery should be only the property or extended to the property-related interests, with the phenomena of non-property-related interests continued to be neglected, we will lack complete and clear knowledge of the corrupt situation at present in society, which is not beneficial to prevent in time, correctly crack down on and control various phenomena of corruption at present in society. Finally, the suggestion of extending the range of the object of committing bribery in legislation is presented, with its necessity as follows. The first is the need of criminal legislation in time. With the rapid development of society and the continuous change of the situation, the bribing and briberies are not limited to the traditional trade of authority and property but represented in various characteristics; therefore, the national criminal legislation should be adaptable to the objective change in time and adjust itself in good time. The second is the realistic need of cracking down on corruption and advocating purity. In the society today, the phenomena of taking the non-property-related interests as the object of committing often happen in the realistic life, which have been extremely hated by the people; therefore, these phenomena should be correctly confronted and punished in time, instead of holding the obsolete idea that bribe is property. The third is the need of carrying out theobligations of the state member signing the UN Conventions Against Corruption. The feasibility first lies in a precedent case of extending the range of the object of committing bribery in ancient China, for example, the typical ancient "Shuyu Judging the Case". Secondly, there is a complete realistic foundation for which the range of the object of committing bribery is extended today. Thirdly, it is the successful case of extending the range of the object of committing bribery in legislation of Hongkong, Taiwan and foreign countries. Therefore, it is concluded that it is not only a theoretic study but also feasible in realistic operation to extend the object of committing bribery from property and property-related interests to all interests. In Chapter 4 of the paper, the assumption that the object of committing bribery is perfected to interests is further dealt with. The nature of bribery is first analyzed, which is defined as the infringement upon the purity of the national governmental officials, and then the concrete assumption of perfecting the object of committing bribery is presented. It is first determined that the concept of interests is benefits and it is further discussed that the ground for defining the object of committing bribery as "interests"is suitable to the nature of bribery, the elements of committing bribery and the actual demand of the principle of restraint of the criminal law in the current fight against corruption. Subsequently, some problems, which may possibly occur in the judicial practice after the theory of interests is adopted, are analyzed, such as the determination of the criteria of interests, judgment of the criteria for determining what punishment to give and elimination of doubts about the enlargement of enforcement as well as sexual bribe, etc.. And then the assumption that two steps are taken from the judicial practice is presented. The first step is that a supplementary regulation on the range of the object of committing bribery should be established by the Standing Committee of the National People's Congress, extending the range of the object of committing bribery to all the interests. The second is that the articles of the criminal law should be revised when conditions permit and the concrete forms of interests should be reclassified and finally the current criminal legislative system of bribery should be established and perfected.
Keywords/Search Tags:Legislation
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