A Study On Some Controversy Problems Of The Corruption Offence

The corruption offence is a kind of severe crime of the job and economy. In times gone by it has always been the point of stroke by the penal code of our country. With the deepening of our political and economic reform and the transform of Chinese marketing system, the corruption offence has been increasing. One of the important reasons is that many problems relating to lawmaking and judicatory practice remain unsettled during the process of combating with the corruption. For instance, the defining of the subject of the corruption offence, the accomplice and the uncompleted offence, etc, are still the disputing issues. Therefore, the present dissertation tries to analyze reasonably the above questions of the corruption offence. It consists of four parts:Starting from the subject of corruption, the first part studies the composing of it. Since beating out the fundamental features of state functionary is essential to the cognizance, the paper, by analyzing some connotations of "public affairs" and figuring out the difference between "public service" and "public affairs", puts forward the view that to pursue public affairs is the nature of state functionary. The cognizance of state functionary includes that of state organ staff and quasi state organ staff. The scope of state organs is defined and departments of CCP and CPPCC at various levels are not included. Hence, staff members who work in them are not state functionaries. Enterprises and government institutions which exert administrative and managing functions should also be excluded. The key to identify quasi state functionary is to nail down whether or not staff members of residents' committee should be included as "other personnel who undertake public affairs" as well as perceive precise understanding of the connotations of "state-owned companies and enterprises" "accreditation" and "non-state-owned enterprises". Those who are consigned to operate state-owned property are specific subjects of the corruption offence and the consignments conditions should be clarified when identifying them, particularly the three types of contractors. Then the paper analyzes the question from the aspect of the objectives of corruption. The thorough understanding of "taking the advantages of the posts" and the variety of corruption is of primary importance. The three aspects of "taking advantage of posts" are, whether it is the legal posts, whether it is other's posts and whether it is time-constraint. The variety and complicity of corruption make it difficult to distinguish them from each other, therefore, the paper mainly talks about the offences such as embezzlement, stealing and defrauding.The second part of the dissertation is on the uncompleted corruption offence. Reviewing the theories of affirmation and negation, a conclusion is reached that there ARE uncompleted corruptions. A further discussion on the criterion of the completed and uncompleted corruption is followed, among which are the three representative views of the out-of-control, the possessive and the controlled. The author identifies with the view of the controlled, insisting that the fact that whether the doer illegally controlled the public property should be taken as the standard of distinguishing the completed and uncompleted corruption. Finally, the paper talks about the treatment of the uncompleted corruption.Joint offence of corruption is the research focus of the third part. Beginning with the identification of joint offence, it discusses a very controversy question about the joint offence by the specific subjects of corruption, that is, under what condition the two subjects with different posts which are affiliated to each other are considered as the fellowship in crime. This part also analyzes the joint offence of corruption with the collusion with specific subjects and non-specific subjects. The author insists that for those who takes the advantage of their post and unlawfully detain public property in collaboration with each other should be treated as a joint commission of corruption offence. As for the hybrid agent working in the same unit unlawfully detain the unit's property by taking the advantage of their own posts, they should be treated respectively. Finally in this part, the author states about the identification of the amount of corruption. Through the study of the legislation since the founding of PRC, the author agrees with the theory of taking the total amount as the standard of conviction and the amount that each of the members in the fellowship gets as the standard of punishment.The forth part, which is the last aspect of the thesis, talks about the perfect of corruption legislation through the angle of the UN Convention on Anti-corruption . according to the difference between our country's legislation and the Convention , the author proposes a list of points: to define subject of corruption as "public functionary"; to expand the object of corruption to non-public property; to delete death penalty conditionally; to strengthen the system of the declaration of individual property; to set up the system of judgment by default and the system of recovery of the lost funds.