A Research On The Identification For Common Bribery Crime

Common bribery crime is one prominent feature of bribery crime at present, which is more complicated and more harmful to society. Besides generalities shared with general common crimes, common bribery crime has its own particularities and feature, which make it more challengeable in judicial practice and theoretical research. Studying seriously on the common crime issue of bribery crime is not only of theoretical significance but also more important judicial practice sense with the purpose to punish bribery behavior harshly, better prevent bribery crime and strengthening the building of a clean government. This thesis emphasizes on author's understandings for the specific identification of various types of common bribery crime based on reference and induction of many theoretical viewpoints combining case handling practice, moreover, the author gives personal views on legislative improvement.This thesis is divided into 6 parts.In Part 1, it discusses the key issues in the composition of common bribery crime. First, it is about relevant stipulations in criminal laws of China on the elements and offense by status of common crime. Besides this, considering the special status of state staffs, it is concluded that bribery crime belongs to true offense by status. Next, the basic concept of common bribery crime is summarized briefly with emphasis on its three particularities: the subject of crime is special, the intention of crime is of connectivity and the objective acts are of wholeness and complex. Finally in part 1, the intention of common bribery crime is focused on, that is, deliberate execution, deliberate instigation and deliberate help.In Part 2, it is on the identification to common bribery crime of state staffs. Firstly, there are two kinds of collusions among state staffs, which are collusions and bribes among state staffs in the same organization and in different organizations. Secondly, it is given a brief illustration on the behavioral expression of common bribe of state staffs. Thirdly, differentiations between common bribe and mediatory bribe are analyzed simply, which represent in the subjects of crime, the subjective elements and objective acts.In Part 3, it is talked about the identification of common bribery crime of state staffs and non-state staffs. Firstly, Characterization and specific disposition of common bribery cases of state staffs and workers in company and enterprise are analyzed and argued. The author propose personal viewpoints on the characterization of common bribery cases of state staffs and workers in company and enterprise on the basis of Separately Conviction Theory, Prime Culprit Determination Theory, and Heavy-Penalty Trend Theory in theoretical circle. The author also express personal standpoint on three circumstances of common bribery crime mentioned above: one party takes advantage of his or her official power; both parties take advantage of their official power; both parties take advantage of their official powers and meanwhile take advantage of the other party's official power. Secondly, a detailed discussion is made on the recognition of common bribery crime of state staffs and non-state staffs, which can be divided into six situations: the non-state staffs persuade, demand and coerce state staffs to take bribe; government and non-state staffs divide works with conspiracy and cooperate to take or extort bribe; several state staffs extort or take bribe organized by non-state staffs; bribers designated by state staffs distribute money and goods to the interested party (belongs to non-state staffs); state staffs incite non-state staffs to extort or accept money and goods. Among these six, the situation that bribers designated by state staffs distribute money and goods to the interested party (belongs to non-state staffs) is focused on, which is difficult to handle. In this situation, according to facts of cases, different judgment should be given on a case to case basis, in which the key is the roles played by state staffs and the interested party in bribery behavior.In Part 4, it is on the issue of common bribery crime in work unit. First is focus on whether the work unit can be taken as the subject of crime. Through the analysis of Positive Theory and Negative Theory in theoretical circle, it is concluded that the work unite can be the subject of common bribery crime. The reasons are: firstly, the work unit is the organization with personality which has functions of behavior and criminal liability, thus it can carry out criminal activities in the name of itself. Secondly, there is clear legislative authority of recognizing the work unit as the subject of crime; however, it should be taken into consideration that, the criminal liability of the work unit is simulated by law based on the capacity of crime and capacity of criminal responsibility. The common criminal relationship can be formed between the work unit and the natural person, but this should be within the scope of constituting crimes stipulated by criminal laws. The next point is the recognition analysis on the forms of common bribery crime of the work unit, which are bribery crime executed together by more than two work units and by state-owned work units and natural persons. The latter one can be divided into two situations again, one is the recognition of bribery crime executed by work units and state staffs together; the other is the one executed by work units and non-state staffs.In part 5, the common bribery crime executed by state staffs and their relatives is discussed. Recognition analysis is made in detail from seven aspects, which mainly are the definition of relatives, the analysis on the particularity of relationship of subjects, research on categorization, characterization of objective and objective elements, qualitative punishment of common bribery crime executed by state staffs and their relatives together, and common bribery crime convicted by state staffs and their lovers and other aspects. The focus of analysis is the concept of relatives, characterization of subjective elements and qualitative punishment.In Part 6, it has discussed on the legislative improvement of common bribery crime. Four advices are proposed: clarification of legislative statement, the establishment of third party's mediatory crime, restructure of the composition of bribery crime and implementation of intention presumption system of conditionally common bribery crime.