On Legislative Reform Of The Crime Of Acceptance Of Bribes

According to the Clause 1 of Article 385 of Chinese criminal Law'97, "A public servant of the state who, by taking advantage of his post, asks for another person's property, or illegally accepts another person's property and secures advantages for him, shall be guilty of a crime of acceptance of bribes. " From this definition, "securing advantages for another person" is the prerequisite for acceptance-oriented crime of acceptance of bribes described clearly in Chinese existing criminal law. However, different understandings have existed in quality of prerequisite between the academic field and the judicial field, which produces the impact on characterization of bribery behavior directly and uniform of legality. Meanwhile, this circumstance hinders greatly the penalty and fighting against criminals who have committed the crime of bribe. In consequences, many criminals have escaped from the punishment deserved. Considering some problems and conflicts encountered in the judicial practices, the author doubts the fact that "securing advantages for another person" is regarded as the constitutive requirement for a crime of acceptance of bribes. The body of the paper is composed of four parts.In the first part, the author puts forward the thesis statement of the paper that is the practical current situation of a crime of acceptance of bribes. Because of the different understandings in the notion of "securing advantages for another person" , different judgments are made on the cases with same characteristics, which has influenced directly the uniform of legality. Before the thesis statement, some basic knowledge is introduced in details including the concept of a crime of acceptance of bribes, its constitutive requirement, characteristics and legislative spirits. The second part, at beginning, provides various theories asserting"securing advantages for another person" as a constitutive requirementfor a crime of acceptance of bribes. At present, there are mainly fivetheories that are " the theory of old objective requirement, " the theoryof new objective requirement, " the theory of subjective requirement," the theory of dual requirement" as well as the theory of negation.Since various views based on the assertive theory have conflicted eachother both in theory and practices, some conducts like accepting moneywith doing anything, long-term affectionate investment and acceptingmoney and property after doing advantage without arrangement in advance,etc. cannot be punished accordingly. The deficiency——a theoreticalchaos occurs thereafter, which will do harm on tightening criminal law network, on connecting to international criminal judiciary and will counter the constitution system and criminal law principles.The third part introduces the legislative history of a crime of acceptance of bribes in our country at first. Then some similarities and differences of constitutive requirements for the crime concerned between China and foreign nations are drawn on the basis of analysis of legislative regulations of law systems of UK and UN, the civil law system and UN Anti-Corruption Convention.The fourth part first analyzes the two different arguments on the issue of "securing advantages for another person" as a constitutive requirement for a crime of acceptance of bribes. They are the view of abolishment and the view of reservation. The author agrees with the former. By looking into some legislative cases regarding a crime of acceptance of bribes in most foreign nations, the author argues that from a long-term perspective, "securing advantages for another person" as a constitutive requirement for a crime of acceptance of bribes should be abolished. Instead, "securing advantages for another person" should be treated as a circumstance for more serious sentencing, which means the case with such circumstance should be judged more seriously than a general bribery conduct. Meanwhile, when "securing improper advantages for another person" takes place, the sentencing should be much heavier than the case with the circumstance of "securing proper advantages for another person" . Therefore, sentence should be imposed accordingly. Next, the author tends to distinguish among newly-legislated the crime of acceptance of a bribe, the act of giving gift, a crime of fraud and a crime of extortion. He indicates in the further that after the circumstance of "securing advantages for another person" as one of the constitutive requirements was abolished, the law provisions of punishing the crime of acceptance of a bribe would be operated as well as before.