| Corruption is always a stubborn disease of the society. With the ecnomic relationship between countries becoming tighter and tighter, corruption has spread across the borders, and brought a lot of harms to the international society. Thus, the problem of corruption is attended to by the international society, the United Nations Convention against Corruption (Convention hereafter) is born in the above background. As a member state of the Convention, China should reference to the Convention and deepen our study of bribery, perfect our legislation of bribery, and thus can make the result of the battle toward corruption better. On this foundation, this article analyses the bribery and points out the shortage of the legislation of bribery in our criminal law, additionally, this article gives several suggestions to our legislation from the respect of the Convention, hoping to adjoin our legislation to the Convention better.This article is arranged in three parts, and they go forward on by one in a logial relationship aspect.The first chapter is an analysis of the bribery in the Convention. In this chapter, the author analyses the bribery in three aspects.Firstly, the perfection rules of the subjects of bribery are introduced. The subjects of bribery are divide into"public official"and"foreign public officials and officials of public international organizations"in the Convention.,the nature of corruption is the intrusion to the integrity of official behaviors,and the"public official"and"foreign public officials and officials of public international organizations"can be the subjects of the bribery, thus, to set the"public official"and"foreign public officials and officials of public international organizations"as the subjects of the bribery is coordinate to the nature of bribery. Then the author demonstrates the meaning of"public official", the standard of judging"public official"is ruled in three levels: The first is"identity standard",that is ,the person who has the identity of civil servant surly belongs to the"public official"; The second is"duty standard", that is,if a person doesn't have the civil servant identity, but once he has the official duties,he belongs to the subjects of the bribery,too. The third standard is upon the legislations in the member states of the Convention. So,this three standards and their relationship are very clear and easy to conduct in judicial practice. Then,this articl demonstrates the meaning of this rules in the Convention,from the reserch aspect,the rules are perfect and worth to be studied by the member states, from the practice aspect, the standards are easy to conduct in judicial practice and hold the authority of law.Secondly, this article demonstrates the clearness of the rules in objective aspects of brebery. The Convention divides bribery into two types, the solicitation and acceptance by a public official, directly and indirectly, of an undue advantage, for the official himself or another person of entity, in order that the official act or refrain from acting in the exercise of his official duties.This rules are concise and easy to be conduct in judicial practice.In the last part of the first chapter, this article introduces the contents of bribery.The Convention says the contents of bribery is"undue advantage",whose meaning is very abundant. The undue advantage contains not only money,but also the repay of debt,the provision of food and shelter,sex and so on which can't be listed by legislation.The above various forms are concluded by the word"undue advantage",which can compensate the shortages of legislation,and can defeat bribery efficiently.The second chapter is the analysis about the rules of bribery in our country's criminal law,and the analysis is from the respect of the Convention.Chapter two is also divided into three parts.Firstly,this article demonstrates the subjects of bribery in our criminal law. In our criminal law, the subjects of bribery are civil servants and the people who work in state owned companies and other state owned entities.From the respect of the Convention,the author says there are at least four shortages in the subjects of bribery in our criminal law.The first is that our criminal law doesn't rule the people who are entrusted to manage state owned property can be a subject of bribery, the second is that our criminal law doesn't rule the people who are not civil servant but have official duties can be a subject of bribery,such as the arbitrater.The third is that our criminal law doesn't rule the foreign public officials and officials of public international organizations can be a subject of bribery. And the forth is that the rules of subject of bribery is blurred.But how to confine the subject of bribery and make it clear and easy to product in judicial practice is still a problem waiting to be solved in our criminal law.Secondly, the article analyses the problems brought by the rule of"for other pepole's benifits".The rule of"for other pepole's benifits"can't find its position in the composition of crime offenses, and it can't satisfy the demands of the nature of bribery.In judicial practice, the rule of"for other pepole's benifits"brings about unnecessary limits,thus a lot of behaviors can't be ruled by the law, and then ,the article listed two sitiuations that can't be ruled by the law.In the following part, the author points out that the rule of"for other pepole's benifits"not only makes various unstandings of the composition of bribery ,but also brings many difficulties in judicial practice.All these shortages are because of the rule of"for other pepole's benifits",if we cancel it ,all the shortages above can be dismissed.Thirdly, the article analyses the content of bribery,and points out that the rule of the content of bribery in our criminal law is too narrow in contemporary society.If the content of bribery is confined within money and matirials,it can't satisfy the demand of judicial practice and it can't be coordinate with the nature of bribery,it also makes conflicts in our laws of different departs, and at the same time, such rules are not fit for the legislation trend in international society.In chapter three, the author put up with the suggestions to better the rules of bribery in our criminal law.On the analysis in chapter two, this chaper is also demonstrated in three respects.Firsty,the author says the scope of the subject of bribery should be widen.People who are entrusted to manage state owned property should be added to the scope of the subject of bribery, the foreign public officials and officials of public international organizations should be added to the scope of the subject of bribery, and the arbitrators should also be added to the scope of the subject of bribery.Besides, the present rules of the subject of bribery should be clarified, that is ,the scope of the subject of bribery should be clarified.And the point is to make the meaning of"civil servant"and"official duty"clear. Hence,the author make detail analysis of the meaning of"civil servant"and"official duty".Secondly,it is suggested that to cancel the rule of"for other people's benifites".To cancel this rule is coordinate to the nature of bribery,satisfies the demand of the aim of legislation,and is good to the adjoinment between our domestic legislation and international legislation,is good to the judicial practice.At last, it is suggested that to enlarge the content of bribery to"undue advantage".In this way, our legislation of bribery can not only become more scientific and perfect, become more coordinate with the nature of bribery,but also can defeat bribery offenses more effectively. |
