Cognizance Of Bribery Crime

Bribery is one of ancient crime, which seriously infringes honesty of state functionaries and harms the Construction of Socialism. It is significant to study such crime for successful struggling against corruption, building the harmonious society, safeguarding the people's democracy and dictatorship regime and keeping the chasteness and struggle spirit of the party.Besides forward, the article consists of four chapters with about 30000 words.Chapter 1, the profile of bribery crime, briefly reviews the legislation and judicial practice on the bribery crime. In discussion, the author refers former statistic data that clearly show that, since the reform and opening-up, the anti-corruption combat confronts the severe situations day by day, the leaders of central authorities address the importance of anti-corruption in different periods and from different perspective, and the punishment on corruption has become one of the most essential tasks faced by China. As the last line of defense for preventing and punishing corruption, scholars in criminal law must study the issues on how to correctly understand and complete provisions of the current criminal law, obviously, which is important for properly applying the crime law in striking corruption.Chapter 2 discusses determination of subject of bribery crime--- correct recognition of state functionaries. The legislation on the subject of bribery crime has changed several times. Although the article 93 of the amended criminal law stipulates the concept of the state functionaries, there still exist disputes on how to correctly recognize the state functionaries while dealing with cases because of the complex situation in Judiciary Practice in the changing period of our society. Thus, study on such issues is very important for determination of bribery crime. After reviewing the opinions in theory and practice areas, the author insists that the theory of"public affairs"shall become the criterion in employing the state functionaries. To correctly understand such opinion, the author discusses the relationship among the"official activities","service activities"and"private activities". The author also discusses the determination on"person assigned to performing public service"and other persons performing public service according to law", summarizes the basic characteristic of"assigning"and emphasizes that performing"public service"is the fundamental nature of legal and effective assignment. The author also discusses the differences between"entrustment"and"assignment". The author insists that performing public service shall be the criterion in determining the"other persons performing public service according to law". Finally, surrounding common issues in judicial practice, the author discusses the situations that members of village and resident Party branch, state functionaries in the Process of Reforming State Enterprises and family member of state functionaries can constitute the accomplice of bribery crime.Chapter 3, the determination of objective aspect of bribery crime, mainly discusses three issues. First, the law provides that the object of the bribery crime is"property". Correctly understanding such provision is significant for determining that whether a person constitutes bribery crime or not. The author insists that the scope of"property"only includes"property"or"property interests"but not includes non-money advantage before amendment of criminal law, which embodies the Principle of Crimes and Punishment Stipulated by Law. Second, the criminal law provides the sum of bribes accepted as the main basis for punishment. Thus, that correctly recognize the sum of bribes accepted is very important in judicial practice. With the development of the society, the real estate as the bribe accepted often appears in judicial practice so that how to determine the value of the real estate accepted become the key in determination the sum of bribery. The article mainly discusses the issues that whether buying real estate in preferential price constructs bribery crime or not and how to determine the amount accepted if constructing the crime. The author provides his own opinion on such issues bases on the justice explanation from Supreme People's Court and People's Supreme Procuratorate. Finally, the author distinguishes the courtesy demands reciprocity and bribery. The author insists that, from the point of the principle of governing the official strictly, reasonable room of courtesy demands reciprocity shall be provided in order to realize the goal of anticorruption and instruct the judicial practiceChapter 4, The Influence of UN Anti-Corruption Convention on China, provides suggestions on amendment of legislation on bribery crime in our country by reference to The UN Anti-Corruption Convention. China has already has signed this"convention". Thus, the convention shall be the basis guideline for our country to complete law in the future. The article firstly introduces the basic content, summarizes the basic characters of the bribery crime provided by The UN Anti-Corruption Convention. Based on which the author suggests that the stipulations on bribery crime be amended as the following : first, defining the scope of subject of bribery crime by revising vague"state functionaries"to Public Officials or Officials with clearer connotation and extension. Second, enlarging the scope of object of the bribery crime by changing current"property"to"unjust interests or benefits"to strengthen the punishment on the crime. Finally, changing the provision that takes sum accepted as the basis of punishment, the sum accepted shall be the basic content of Convictive Circumstances and important factors for sentence considered by judicial organ. Social harmfulness, circumstances and consequence of crime and so on shall also be considered to determine the convicting and sentencing criterion of corruption crime in our country.