Treatise On The Crime Of Commercial Bribery

As one form of bribery, commercial bribery comes into being with the development of marketing economy. From the time of our country exercising marketing economy, the commercial competition becomes increasingly fierce; as a result, some merchants would rather take a risk to bribe in order to win a space in the market, which makes the bribery becomes a kind of hidden rule in the commercial field for a while. This phenomenon even has the trend of becoming more violent; however, there isn't a specific charge of commercial bribery in our country's criminal law. So the crime of commercial bribery is dealt with in terms of other charges like offering a bribe and bribing the staff of companies,enterprises or other units, causing that a lot of crimes cannot be published timely and bribery cannot be kept down effectively. Therefore, the author selects several problems of the crime of commercial bribery to have a research.There are four parts in this paper:Part I is the general introduction of the crime of commercial bribery, including four aspects. First, the definition of commercial bribery is presented. Commercial bribery, as a technical term in competing law, is a typical unfair competition. The merchant tries to win the opportunity of trade through the way of giving profits to the units of individuals of the party, which deprives the opportunity of other merchants to compete with them fairly. The conception of commercial bribery has both the broad sense and narrow sense. In the board sense, commercial bribery includes offering the commercial bribe and accepting the bribe, while in the narrow sense, it only means offering the commercial bribe. Secondly, the legislative evolution of the crime of commercial bribery takes an overview of the legislation and development of our country's commercial bribery, and introduces the course and present condition of overseas legislation of anti-corruption, including the United States'Foreign Corrupt Practices Act, and United Nation Anti-corruption Convention. Thirdly, the commercial features of commercial bribery can differentiate it from other crimes of bribery. First of all, commercial bribery occurs in the economic activities, more serious in the fields of medicine, retail, real estate, insurance, tour, telecommunication, banking and schooling. Then, the harm of commercial bribery mainly represents in four aspects: damaging the fairy competition, impairing the country's revenue, counterfeit products damaging the consumer's interests and causing the crimes of corruption and bribery.Part II is the features of the crime of commercial bribery, including four aspects. First, the object of the crime of commercial bribery is complex object. The bribing behavior offences the normal and fair competitive order, and also infringes the non-tampering properties of the state units and its personnel or of the companies,enterprises and their staff. Secondly, the objective aspect of this crime is that the merchant uses the means of properties, kickbacks and handling charges to bribe the dealing party's unit or individuals in order to sell or buy goods. Nowadays, there are various means of bribery, and the author makes an analysis of the meaning of properties, kickbacks and handling charge according to the criminal law. Thirdly, this crime's subject is the merchant. The author introduces the disputes of the cognizance of merchant, and holds that the scope of merchant should be recognized from the management action, not the management qualification. The bribery offered by the staff discriminates from that offered by the units by the way that whether the bribe act is given on the unit's behalf and by the ownership of the benefits. Fourthly, this crime's subjective aspect is that the merchant's intention of hoping to win the trade opportunity which he shouldn't or is impossible or uncertain to get. The author also analyses the definition of the disputable"trying to obtain improper benefits", which should mean that the illegal procedure is not the necessary condition when the benefits violate the law; however, if the benefits are not illegal, it's necessary that the briber knows that the bribee provides the help or convenience violating the law, statute, the nation's policy and the State Council's departments'regulation.Part III introduces the specific crimes of commercial bribery. The crime of commercial bribery is not a special charge, but is presented in terms of other crimes: the crime of bribery, bribing to the units, recommending bribery, the bribery of units and bribing to the staff of companies,enterprises and other units. The author analyses these charges, first, the difference between bribery and giving should be clear when distinguishing the crime of bribery, mostly the subjective motive of the man who gives. Giving presents is based on the relatives and friends'communication whose outstanding feather is non-paying. But the formal"giving"bribery is seemingly non-paying, while actually to obtain private benefits making use of the bribee's official post. The crime of recommending bribery's relies on the doer's objective behavior and subjective intent. Objectively the does acts as a go-between for the briber and bribee, while subjectively he or she doesn't have the intent of obtain improper benefits. When analyzing the crime of bribing to the units, the author introduces the academic deputies existing in the recognition of unit. As to the crime of bribing to the staff of companies,enterprises and other units, the author puts forward the point that the more reasonable name of the crime bribing to the staff of companies,enterprises after being revised should be bribing to the staff of companies,enterprises and other units.Part IV, the author puts forward the proposition to improve the legislation of the crime of commercial bribery. First, set up the crime of commercial bribery. Owing to the lack of specific charge of commercial bribery in criminal law, it goes against the investigation and punishment of this crime. And adding this specific charge can also take it easy to distinguish it from other crimes of bribery. The subject is special subject of merchant, and the subjective aspect should be stipulated concretely as"excluding proper competition to obtain benefits", in order to avoid the disputes of"trying to obtain improper benefits"in the theory and the identifying difficulty in the practice. Secondly, the author suggests that there is a legal loophole in the criminal law that there isn't a charge of bribing to the company,enterprise of other units. It's necessary to set up this crime for this kind of activity is free from criminal law. Thirdly, the crimes of bribe to the foreign officials or officials of international public organizations should be added. The author suggests that to set up this crime is aiming at the activity of offering bribe to the foreign officials or officials of international public organizations in the international economic activities, and also accords with the requirement of United Nation Anti-corruption Convention. Fourthly, the pattern of act of commercial bribery should be extended. The objective behavior pattern of bribery in the criminal law is only limited to"give", which not only is inconsistent with the international stipulation of promising to give, proposing to give and actually give, but also makes is hard to punish the crimes of commercial bribery to the full. Fifthly, the author holds that the means of commercial bribery should be expanded, adding the non-material benefits. The criminal law only takes the material benefits for the means of bribery, causing more and more people make use of the means of non-material benefits to offer bribes to evade from the sanction of the criminal law, so it must adopt the criminal law to punish this kind of bribery.