A Research On The Mediatory-Bribe Crime

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. It is called Mediatory-bribe in theory.Experts have two kinds of views on independent crime of Mediatory-bribe. One thinks it's not an independent crime, is only the implement of common bribe; but, another thinks it's an independent crime, because of its independent fact of as a crime. The author contents the second view, thinks existing different special constitute requisites between Mediatory-bribe and accept common bribe, and Mediatory-bribe can be an independent crime though using the experience of other countries for conference.The object of Mediatory-bribe exist the following four kinds of views. They are Normal Activity of State Organ, Complicated Objects, Selecting Objects, and Clean Duty of state working staff. The first three kinds of views have their weak points; Clean Duty of state working staff shows the essence of Mediatory-bribe and conforms to the legislative intention of article 388 of criminal Law. The subject of can only be state officials, Retired personnel and family members who work for mediation is not the subject of Mediatory-bribe.As how to explain"taking advantage of one's duty of position", there are also many kinds of views as "restraint", "non-restricted" and "On the identity or face" perspective. "non-restricted" is conducive to promoting the anti-corruption struggle, and clearly define the limits of the crime and non-crime, it is more appropriate. the "illegitimate interests" in Mediatory-bribe should not distinguish between the legitimate interests or not.In judicial practice, as a mediation element of the crime of taking bribes specificity, and its ordinary crime of accepting bribes and other similar crimes, judicial disputes that often arise and confusion. Therefore, the staff of the national mediation committing the crime of bribery, it is necessary to distinguish crime and non-crime, as well as,the boundaries between Mediatory-bribe and other related charges. On how to improve the legislation of Mediatory-bribe, combining several parts of the analysis before, the paper thinks Mediatory-bribe is a crime and an independent count, it should be a separate crime. Bribery in the mediation is not limited to making improper benefits, should be extended to all interests; inappropriate advantages Should be aggravating circumstances; Bribery should include not only the content of material properties, but also includes non-material interests. the death penalty Should be abolited, should increase additional criminal fine, and shoud perfect for Eligible punishment.