Research On Legislation Of Commercial Bribery Crime

Seeing through the commercial history of China, the famous business master Bai Gui gave an apothegm in business field—Making a decisions in front of people but still having other plans can ensure your success. In the following dynasties, commerce and country, politics and bureaucracy had formed different kinds of close relation with more and more serious commercial bribery. With the reform and opening up of our economy, business has been everywhere in our lives, and commercial bribery occurs as well. The causticity of commercial bribery to the society should never be underestimated, especially to a society with new established market economy, for which a fair competing environment is the most important. Therefore, commercial bribery has become a major rival for our establishment of socialist market economy, and should be strongly contained by law.In the first part of this thesis, it talks about the necessity of making legislation of commercial bribery crimes. Besides causing social harms, commercial bribery has caused losing credit of general public, deterioration of social environment, corruption, abuse of authority and low quality construction project. It goes opposite to the core value of market economy seriously, and the resource allocation can not reach the Pareto Optimal Condition, which make the macro-control invalid, cause hazard to the national tax, destroy national economic lifelines and endanger national security. Through the analysis of the current anti-commercial bribery law, it has such problems as concept confusion of commercial bribery crime; legislation system is not complete, and unsuitable for our economic development and international anti-corruption actions. Those problems have reflected such aspects as single subject, subject fossilization, object confusion, object shortage and particularly the lack of punishment and confusion of judgment in the features of commercial bribery crimes. Therefore, it is necessary to enhance the commercial bribery legislation in China.In the second part, it talks about overseas commercial bribery legislation. First of all, it introduces the anti-commercial bribery law in America, showing the features of legislation about bribery to foreign officials and high penalty. Secondly, it talks about the regulations in Germany about promise, provide or give in the commercial bribery legislation, representing the objective features in commercial bribery crimes, such as the regulations on interests in pre-term and fixed term; in the introduction of Spanish anti-commercial bribery law, it shows the width of criminals, special influence power, high penalty in the punishment and makes differences of the punishments to criminals.; it introduces the system of controlling commercial bribery in Japan, makes differences between positive and negative performance in fulfilling duties and sets up punishment against qualifications and Lian Zuo punishment system; it also introduces some terms in agreements signed by international organizations, introducing the global controlling mode of anti-commercial bribery and international cooperation spirit. Therefore, we can see the legislation principles, subject range, features and punishment that we can learn from in controlling commercial bribery in China.In the third part, it talks about the selection of legislative mode of commercial bribery in China. Through the discussion about the legislation to control commercial bribery in domestic academic circles, and some learned experiences from other others, there will be some discussions in the part, and the conclusion is to set up a secondary accusation in Chapter Three of Criminal Law--Crime of Violating Fair Competition Market Transaction Order.In the fourth part, it is about the perfection of commercial bribery crime legislation in China. It mainly gives several suggestions about completing the commercial bribery legislation. First is to emphasize the concept of commercial bribery through the combination and decomposition of commercial bribery. Combining with the explanations about commercial transaction in United Nations Convention on Jurisdiction a Immunities of States and Their Property, analysis on definitions of commercial bribery in common law system and civil law system and the legislation of China, we analyze the limitations in existed definition, so as to get a deduction that commercial bribery is an illegal competition behavior to directly or indirectly give or receive money, properties and any other benefits outside transaction with a purpose to get more commercial transactions. Second is to introduce the situation of the main body of commercial bribery crime in our criminal legislation, and find out that the subject of commercial bribery crimes is keeping enlarging, but still incomplete. We should include all transaction participants, legal men other organizations and natural persons. Thirdly, through the discussion on the subjective aspect of commercial bribery crime, the author thinks that the subjective aspect does not only include purposely bribery, but indirect bribery, which should be treated differently. Fourthly, with the analysis of the objects of commercial bribery crime in the current criminal legislation and many opinions on commercial bribery objects in law circles, we can deduce that the object is neither compound object nor optional object, but they should be single and the object of commercial bribery crime is a direct object but not ordinary or similar ones. The description of commercial bribery object should be the market transaction order of fair competition market between market subjects. Fifthly, as to the objective aspects of commercial bribery crime, the author has analyzed the objective aspects including the bribery behaviors, harmful consequences, relations between causes and results, means, objects, circumstance and amount, and then comparing, proving and giving a conclusion. The object of commercial bribery is interest, including all that can bring metal or spiritual satisfaction, property benefits and non-property benefits. Commercial bribery has a time limit, and the time limit is different for different behavior objects so they should be treated differently in our anti-commercial bribery legislation with corresponding regulations. In controlling commercial bribery, we should learn from Japan, and that is to make positive and negative performances in abusing authorities in commercial bribery. As to the cause and result of commercial bribery, we should add regulations on transactions with influence power. More specific regulations should be made on the means, circumstance, amount and consequence of commercial bribery.With the summary, analysis and research of current judicial practice, and the deficiencies of commercial bribery in Criminal Law, the following suggestion are made accordingly. First, it is unfair in the punishments of commercial bribery towards civil servants and stuff in companies, which does not show the principle of equality of people in law, and it should be improved. Second, there is a short of regulation on punishment against qualifications on commercial bribery crime, and it is not clear in the regulation of property punishment judgment and execution, which cause difficult in practice and need improving. Third, we should make more strict and precise qualification regulations on probation, parole, commutation and serving a sentence outside prison in commercial bribery crime. Otherwise, it will not represent the principle of penal should equal to one's sin. The last point is that through the analysis of commercial bribery in international bribery, we should strengthen the criminal legislation of commercial bribery so as to widely carry out judicial assistances in this regard, including extradition of commercial bribery criminals, judicial assistance, transfer of offenders, devolvement of lawsuit, justice cooperation, joint investigation, use of special investigative means, international cooperation for assets recovery and a awe to suspects absconding abroad.