On The Crime Of Bribing Foreign Officials

Along with the economic globalization thorough, the enormous benefit causes the increase of the crime to bribe the foreign officials to obtain more illegal benefits. It putrefied the government workers system of the bribe country and international organization through illegal means and makes the system unable to operate normally; causes imbalance among the international commercial competition in the international trade, the national import-export trade as well as the domestic and foreign enterprises coming under the serious influence. Since the US set up "Anti-Overseas Corruption Law" in 1977, the international convention related to bribing foreign officials'increases gradually, countries also pay more and more attention to punishing the crime to bribe foreign officials, which is manifested in the legislation. Our country has also joined the United Nation Anti-Corruption Treaty in 2005, but our country do not fulfill the duty, "Criminal law" regarding bribing the foreign country public officials crime in our country is still a legislative blank. This article is divided into three parts in which the author makes individual suggestions as to add laws to our "Criminal law" on the crime about bribing the foreign officials.In the first part, the author first elaborated the appearance of the phenomenon and the present legal situation about crime bribing the foreign officials in the world. Along with economic globalization and the increase of international contact, and in the urge of the enormous benefits brought about by economic globalization and the market globalization, the crime to obtain the illegal benefit increases day by day. In 1999 the World Bank had carried on an investigation to 22 developing countries, approximately 30% foreign corporation gives the sales commission in the government procurement, but native company occupies only 20%. Since the US set up "Anti-Overseas Corruption Law" in 1977, now a series of international conventions had already emerged, and the 2000 December United Nations Convention on Transnational Organized Crime as well as the 2003 the United Nation Convention on Corruption and so on, strengthened the international cooperation and attack.Next, the author elaborated the concept and the essential features of the crime to bribe the foreign officials. The 16th stipulation in the United Nation Convention on Corruption regulates "states must adopt the essential legislation and other measures, to stipulate the following as crime: either directly or indirectly promised to give, or proposed to give or actually gave this public officials or other personnel or the entity improper advantage the foreign country public officials or the international public organization officials, causing this public officials or this official takes or does not take duty while on, with the aim of obtaining or the retention of the trade related to international commerce or other improper advantage". Chief features concerning bribing the foreign official crime are: First, this crime's constitution has transnational or the foreign factor; Second, this crime's constitution only involves the bribing side, but not including bribed side; Third, at the objective aspect this crime causes the foreign official not to fulfill its legal responsibility by giving this official wealth or other reward behavior; Fourth, this crime's main body includes both the natural person, and the legal person; Fifth, at the subjective aspect this crime stems from intention, and the author is direct intention.Finally, the author first introduced the stipulation to the bribery crime in our country "Criminal law", and then elaborated the reason why laws about bribing the foreign officials'crime should be additionally built in our country criminal law. First, it can consummate present legal system and fill the blank in our country. Next, our country has joined" the United Nation Anti-Corruption Treaty ", and must fulfill the duty earnestly; Once more, to stipulate bribing the foreign officials as illegal, powerfully promote the establishment and consummation of fair competition order; Finally, to stipulate bribing the foreign officials as illegal, related criminal that runs away to overseas may be smoothly transferred, stolen goods may also be recovered in time.In the second part, the author first introduced briefly several kind of foreign legislation related to bribe the foreign officials crime. The international convention has the United Nation Anti-Corruption Treaty and Economic Cooperation and Development in Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. As for the national law, author mainly introduced Anglo-American legal system represents American and mainland legal system represents Germany.Next, the author compares the above several developed country's laws with our country criminal law and summarizes its strong point. First, the stipulation in the way of bribery, the author thought that "Criminal law" about bribes our country should perform more detailed rules and regulations, by referring to the overseas legislative stipulation to promise to give, to propose to give or actual gives; May also make the judicial interpretation, explained the bribing way. And, should change the stipulation in our country criminal law about bribing way related, adopting the method to benefit. Second, in the fine punishment aspect, the author thought that in our country criminal law more attention should be paid to suitable fine punishment, increase the related suitable fine punishment dynamics in the bribe crime, even use the suitable fine punishment alone, rather than the attachment after the free punishment, can better punish the property crime, fundamentally solves this kind of crime problem. Third, in the free punishment's prison term aspect, regarding bribes the foreign officials and property crime, more fine punishment should be used, but reduces the free punishment standard, and achieves a better comprehensive containment and the prevention effect.In the third part, through the contrast elaboration on the overseas law about bribing the foreign officials, the author first made the elaboration on the concrete provision and the legal punishment to additionally built in our criminal law the foreign officials bribes crime. First, to be specifically, the crime to bribe the foreign officials: "seeks the improper benefit, intention to give the foreign officials, the proposition to give or actual gives the improper belongings, the property benefit and the non-property benefit, destroying the normal international market competition order, harassing national, the intergovernmental normal management activity between International organization, violating foreign officials' integrity. Second, regarding this crime's legal punishment, author has made the clumsy stipulation:"the bribes crime regarding the commit to the foreign officials to give belongings or other benefits, place below three years imprisonment and at the same time the fine; The circumstance is specially serious, place below five year above three year imprisonment, and at the same time the fine or confiscate the property. Demands bribes regarding the foreign officials may be punished leniently; Bribes regarding the initiative confession, may be punished leniently or the mitigated punishment. "Next, the author in this part made the elaboration and the concrete provision in our criminal law to increase the legal punishment on the unit to bribe the foreign officials. First, the unit bribing crime to the foreign officials to be specifically: "the unit and the direct responsible staffs and other direct responsible people seek the improper benefit, promised intentionally the foreign officials to give, propose to give or actual gives the improper belongings, the property benefit and the non-property benefit, destroying the normal international market competition order, harassing national, the intergovernmental normal management activity international organization, violating foreign officials' integrity. Second, regarding this crime's legal punishment, author has made the clumsy stipulation:"the bribes crime regarding the commit to the foreign officials to give belongings or other benefits, place below three years imprisonment and at the same time the fine; The circumstance is specially serious, place below five year above three year imprisonment, and at the same time the fine or confiscate the property. Demands bribes regarding the foreign officials may be punished leniently; Bribes regarding the initiative confession, may be punished leniently or the mitigated punishment. "At last, the author made the elaboration to the problems in bribing the foreign officials'crime as well as this type international crime in the international judicial practice in the process. First, the author believed in the jurisdiction principle in the bribes foreign officials crime, the possession jurisdiction principle must be primary, supplemented by the person jurisdiction and the universal jurisdiction, namely regarding the bribes crime to the foreign officials occurs in our country, is suitable to our country criminal law; But regarding those occurs in foreign country, our country can only exercise the criminal jurisdiction to the bribing foreign officials ;Second, the international criminal law and the domestic criminal law on bribing foreign officials related stipulation should be consistent in the concrete law from the integrant part with the penalty mechanism, then can achieve the effective the request to attack crime. Third, the advancement in the whole world to strike the international crime, cannot only pay attention to the national legislation, but also to study the legislative developed country, mutually help between the country like through the technology, the communication and training the specialists mutually and so on.