The Research On The Crime Of Mediatory-bribe

According to article 388 of Criminal Code of P.R.C, if state working staff utilize the convenience caused by their power or position and by way of other working staff's act, the purpose of which is to seek improper interest of trustee, asking for or accepting bribes. Which is called Mediatory-bribe in theory, or indirect accepting.Nowadays, experts have four kinds of views on object of Mediatory-bribe; they are Normal Activity of State Organ, Complicated Objects, State Economy Management, and Clean Duty. The first three kinds of views have their weak points, Clean Duty shows the essence of Mediatory- bribe and conforms to the legislative intention of article 388 of Criminal Law .As how to explain"taking advantage of one's duty or position", there are also many kinds of views as Regulative Relationship, Non- Regulative Relationship, Horizontal Regulative Relationship, Status, and Comprehensive Relationship. Comprehensive Relationship is more appropriate, because it summarizes all sorts of advantages that the briber would take. The subject of Mediatory-bribe can only be state officials, and its objective aspect is immediate intention.In judicial practice, government officials, who accept and extort properties, or who seek unlawful profits for the entruster through the acts of the third person(another government official), should be differently treated. Meanwhile, criminal responsibility of the third person should be different whether the third person accepts properties from the entruster or not.As there are big differences between Mediatory-bribe and accept common bribe, it should be established as an independent crime. What Mediatory seek should not be limited to"improper interests", but should expand to all interests; seeking"improper"interests should be regarded as condition of severe punishment;"improper interests"should include uncertain interests. Bribery should include not only materiality property, but also other interests that money can calculate. As for the punishment of Mediatory-bribe, we should establish freedom punishment, property punishment and qualification punishment instead of death penalty.