On Judicial Identity Of New-type Crime Of Bribe Taking

The crime of bribe taking refers to the behavior of public officials who, relying on the power that comes with their positions, demand or accept money or properties of other people in exchange for bringing benefits to them. The crime of bribe taking is clearly defined in Article 385 of the Criminal Law of the People's Republic of China, which states that bribe is a form of public official corruption while executing their duties. As a result, the judicial administrations of China are well positioned to bring justice to the crimes of bribe taking. However, due to the legislation ambiguity of bribe-taking crime in the Criminal Law ,many problems still occur in its judicial identity. The stipulations of bribe-taking crimes in China's Criminal Law have failed to cover all forms of bribe-taking crimes, which are found to be extremely complex in the judicial practice. Though the State Government of China has made great efforts to fight against corruption and build a clean and honest government, the most effective way of cracking down on bribe-taking crimes is to specify them in the laws. The thesis has analyzed several new types of bribe-taking crimes in the Circular on Issues of Applicable Laws in Trying Bribe-Taking Criminal Cases jointly promulgated China's Supreme People's Court and Supreme People's Procuratorate, and studied their Circular on Issues of Applicable Laws in Trying Commercial Bribe Criminal Cases and United Nations Convention Against Corruption. After that, the thesis has made case studies and put forward the identify standard of 3 new type crime of bribe taking and analyzed the trading, free-shares and return-after-acceptance types of bribe-taking crimes. After studying the major flaws of existing legislations in their application in new-type bribe-taking crimes, the thesis also gives suggestions on how to improve the relevant stipulations regarding the new-type bribe-taking crimes. The thesis states that, as a person working in the judicial community when China is in the complex transitional period, he has the responsibility to keep studying the legal system concerning bribe taking and in an effort to prevent and crack down on bribery crimes more effectively, and to safeguard the legal dignity and social stability to the largest extent.The thesis has 4 chapters, namely, Summary of New-type Bribe-taking Crimes, Analysis of Applicable Laws in Trading Bribe-taking Crimes, Analysis of Applicable Laws in Free-shares Bribe-taking Crimes, Analysis of Applicable Laws in Return-after-acceptance Bribe-taking Crimes.Chapter I Summary of New-type Bribe-taking CrimesDiscussing the emerging features of bribe-taking crimes in China, such as the shift from individual crimes to joint crimes, separation of benefit-seeking behaviours from property acceptance, and the correlation of business operation and bribe-taking crimes. These new features have made it more difficult for the procuratorial organs to identify the bribe-taking crimes. studieing the 10 types of new bribe-taking crimes that are stipulated in the latest judicial interpretation issued by China's Supreme People's Court and Supreme People's Procuratorate, including the trading, free-shares, joint investment, entrusted financing, gamble, salary payment to nominal person, third-person acceptance, actual possessing, hand-in&return, futures, options, bribe-taking crimes. Meanwhile, this section also introduces the identity of commercial bribery crimes such as in the fields of health care, education and bidding. Discussing the jurisprudence basis and nature of new bribe-taking crimes.Chapter II Analysis of Applicable Laws in Trading Bribe-taking CrimesExplaining the major patterns of trading bribe-taking crime, including purchasing from the bribers housing, cars, etc, at the cost apparaently lower or higher than the market price, and accepting money or properties from the bribers in the disguise of trading. Analyzing features of trading bribe-taking crime, such as the law-violation nature of"trading behaviours", value inequality of tangible traded targets, and the fact that the traded targets are often money or properties. Studing the 2 criteria that need to be specified in identifying the trading bribe-taking crimes, namely, the boundary between purchase at a good price and bribe taking in the disguise of trading, and the criterion of"apparent". The trading price in bribery is rather flexible while the non-bribery trading price is often pre-determined. The trading price in bribery is absolutely targeted while the non-bribery trading price is not targeted or only relatively targeted. The trading price in bribery is determined in a groundless way while the non-bribery trading price is often set on a certain ground. The thesis, from the above 3 perspectives, studies the boundary between purchase at a good price and bribery taking in the disguise of trading. It also gives the author's viewpoint on the criterion of"apparent"in the quantity and trading cost.Chatper III Analysis of Applicable Laws in Free-shares Bribe-taking CrimesDiscussing the concept and features of free shares. Free shares, as the subject of bribe-taking crimes, refers to the legitimate shares accepted by the bribe-takers without payment, which are equivalent to certain amount of money and can bring dividends to the bribe-takers. Studing how to effectively identify the transfer of free shares. It also discusses the effective identity of evidences including the log of stock rights transfer procedures in the ownership trading center, date of shareholders register change, effective date of stock rights transfer contract, and confessions of both briber and bribe-taker on transfer of stock rights. Studing how to identify the quantity of free-shares bribe taking by determining the value of free shares, the quantity when there is a big margin between the shares and dividends and when the shares are not actually transferred. Analyzing the accomplished and attempted free-shares bribe-taking crimes. It introduces 5 views on identity criteria of accomplished and attempted bribe-taking crimes and 2 views on identity criteria of accomplished and attempted free-shares bribe-taking crimes.Chapter IV Analysis of Applicable Laws in Return-after-acceptance Bribe-taking CrimesAnalyzing the representation of return-after-acceptance bribe-taking crimes, which he categorizes into 3 circumstances. As for the second circumstance, in which disagreement occurs, he believes whether the case can be ruled as a bribe-taking crime mainly depends on how to accurately understand and judge the premise of"timely return". Studing the understanding and applicable laws of"timely return", discussing the importance of accurately understanding the"timely return"while identifying the bribe-taking crimes. Section 2 also analyzes the features of"timely", including its relativity, rationality and initiative. Studing the judicial judgement of"timely return", namely, whether the suspects have clearly expressed their unwillingness to accept the money or properties, the lapse between the acceptance and return, and whether some reasonable situation does occur that delays the immediate return.