Thoughts On Non-rationality Of Criminalization Of Sex Bribe

People have been aware of social harm of sex bribe, but scholars are having a heated debate on how to punish sex bribe. This paper proposed that criminalization of sex bribe is inappropriate on basis of summary of scholars'opposition viewpoints. Further more, this paper has a deep discussion on non-criminalization of sex bribe from three aspects. The author want to relax scholars'argument and make contribution to solution of sex bribe in judicial practice according to this paper.This paper consists of three parts as following:The first part gives a brief analysis of sex bribe in nowadays and a brief introduction on how to punish sex bribe. At present, sex bribe has become an important bribe method. To a certain extent, its function even must be higher than belongings bribe. The reason is that sex bribe has several outstanding features compared with belongings bribe: non-property; confidentiality; set of firm; mixing property. Specifically speaking, the situation of sex bribe in our country may analyze from the following three aspects: First, looking from carriers of sex bribe, although the female are still primary, the male who bribe female country staff by appearance to gain improper benefit are not rare in recent years. Next, looking from bribees of sex bribe, both general country staff and high leaders are in the list. Finally, looking from ways of sex bribe, there are mainly direct sex bribe, indirect sex bribe and indirect sex bribe of payment in practice. Bribery cases from judicial practice show that in majority situations, bribers utilize both sex bribe and belongings bribe to gain their improper benefit rather than use the above three ways simply. We may regard this kind of situation as mixed sex bribe, and the above three ways may be called sole sex bribe. Regarding to how to punish sex bribe, scholars have intense argument. Some scholars support criminalization of sex bribe, and their reasons are as follows: Sex bribe has serious social harm and it is consistent with nature of bribery; Sex bribe belongs to scope of moral adjustment and it is also object of legal regulation; Criminalization of sex bribe isn't a violation of the modesty idea of criminal law; Criminalization of sex bribe is to the need of establishing coordinated legal relationship; Criminalization of sex bribe meets desire of many people; Criminalization of sex bribe is according to foreign criminal legislation and judicial practice; Criminalization of sex bribe is to the need of fulfilling convention obligations. Other scholars oppose criminalization of sex bribe, and their reasons are as follows: Criminalization of sex bribe is a violation of the modesty idea of criminal law; Criminalization of sex bribe lacks feasibility; Criminalization of sex bribe infringes female personality right; For the views of the public, we should analyze and treat them rationally, and should not meet them blindly; According to foreign criminal legislation and judicial practice, we can not draw the conclusion that criminalization of sex bribe is necessary; "United Nations Convention against Transnational Organized Crime" and "United Nations Convention against Corruption" have not ask us clearly to criminalize sex bribe.The second part is about non-rationality of criminalization of sex bribe. This paper notes that sex bribe should not be criminalized based on the following three aspects: First, in existing legal framework, criminalization of sex bribe will break the principle of a legally prescribed punishment for a specified crime that is the basic principle of criminal law. An important part of the principle of a legally prescribed punishment for a specified crime is to prohibit analogized explanation. Looking back China's criminal law on the relevant provisions of bribery, we find that, the scope of bribery, which is the act of bribery crimes is confined to "property". If sex bribe causes similar social harm as belongings bribe and as a result people take it as belongings bribe, this can be called analogized explanation. To a certain extent, although this analogized explanation helps a lot to meet the purpose of setting up bribery crimes, as well as satisfying the expect of people, it exceeds the possible meaning of "property" and the possibility of people's general forecasting, also breaks down the principle of criminal law to protect human rights, so it is unaccepted. To prohibit from punishing some behavior which shouldn't be punished is also important content of the principle of a legally prescribed punishment for a specified crime, but criminalization of sex bribe does not conform to the requirement of this important content. Second, criminalization of sex bribe does not conform to the modesty idea of criminal law. Criminal law is the base of other laws, also the strongest backing for the country. It can not only deprive defendants of property, freedom and political rights, but even the most valuable thing-life. Once criminal law can't be used properly, great loss will arrive, such as it is not only difficult to play the effect of special prevention and general prevention, but also easily become violence tools of trampling human rights, resulting in irreparable and incalculable loss. In contemporary society, strengthening the protection of human rights becomes a world trend, and the application of criminal law must be doubly cautious-it must be irreplaceable. Also criminal law should be used as the last method to solve a problem. The modesty concept of criminal law requires three major characteristics when criminal law mechanism operate: complementarity, effectiveness and economy. Criminalization of sex bribe can not meet these three characteristics. Third, criminalization of sex bribe infringes human's personality dignity, which shouldn't be infringed in modern society. If criminal law deals with sex bribe as crime, this means indirectly in legislation that sex is one kind of property whose value can be measured by money, and thus in the legislative level surpasses the basic principle that human is sacred and human dignity is inviolable. It is very dangerous and harmful.The third part is about the detailed ways to deal with and punish sex bribe. For the mixed sex bribe, after convicting the bribee getting property from the briber, we should increase the level of punishing the bribee, and those who provide both property and sex bribe, also should be punished severely and properly. For the sole sex bribe, both the bribee and the briber should be punished according to the involved misprision. But the briber in sole sex bribe shouldn't be punished as the one in property bribe. No matter the behavior of the relevant persons in sex bribe reaches the level of crime or not, corresponding party or government punishment can be applied properly, as well as relevant civil or administrative punishment.