Study On The Special Related Person Participating In The Joint Crime Of Accepting Bribes

On 8 July 2007,the Supreme People's Court("SPC") and the Supreme People's Procuratorate("SPP") jointly issued Opinions designed to clarify certain issues in relation to law on criminal bribery(the "Opinions")."Opinions" to stipulate that,Where a State functionary takes advantage of his position for the benefit of another person and asks that person to give relevant money and property to a special related person in any of the forms prescribed by this opinion,he/she shall be guilty of taking bribes and be punished for it.If the special related person colludes with the State functionary in conducting acts mentioned in the above paragraph,he/she shall be regarded as an accomplice of bribery. Where a person who is not a special related person colludes with a State functionary who takes advantage of his position for the benefit of this person and jointly take possession of the money and property obtained, that person shall be regarded as an accomplice of bribery.This opinion called "the specific related person",means close relatives and mistresses(lovers) of a State functionary and those with whom he/she shares an interest with.Professor Lu Qingzhong divides the taking bribes into three ranks: The first kind is the primary taking bribes,namely the person who takes advantage of his position for the benefit of another person and the person who receive the money and property is identical;The second kind is the intermediate bribe,namely the person who takes advantage of his position for the benefit of another person and who receive the money and property is not identical,but they are the identical family,have the joint property relations,mostly for husband's and wife's taking bribe together; The third kind is the high-level taking bribes,namely the person who takes advantage of his position for the benefit of another person and who receive the money and property is not identical,but not have the joint property relations,mostly mistresses(lovers).At present the high-level taking bribes already become the main forms which the high-ranking official was bribed.This article embarks from the scope of the related person and the basic characteristic of the specific related person Participating in the joint crime of accepting bribes.This article through the accomplice and identity theory thinks the specific related person may Participate in the joint crime of accepting bribes.In the general provisions of Chinese criminal code.Whether the specific related person can practice act of taking bribes,the author's opinion is "takes advantage of his position for the benefit of another person" is took the objective important document exists;the State functionary's relative is perfectly the joint practice offender.The author divides joint bribery into the close relative,the mistresses(lovers) and other specific related person three kinds of situations carries on the analysis.The author thinks the amount of taking bribes recognized should use "the crime total amount to say" more reasonably,the reason lies in:according to our country criminal law theory,should adopt "partially practice the complete responsibility" regarding the joint crime,the joint offenders not only must undertake the legal responsibility about his own crime and results,but also undertake the responsibility on the joint crime which he participated entirely.How the joint crime of taking bribes subjectively recognized intentionally always is the theory and the judicial practice difficulty,because specially between the special relations of the relative forms,the author thinks that when recognize the intent in the process we should apply the presumption principle, otherwise is unable to suppress this kind of crime.The last part of this article thinks that the specific related person joint crime of taking bribes legislation,also has some insufficiencies or is unsatisfactory the place.The author thinks that the specific related person should be revised to be the third party.