Research On Some Problems Of Bribery

Directed by the essential theory of four requisites of criminal constitution, this thesis engages in research of some major problems of bribery concerned in subject and object of crime, subjective and objective aspects of crime.I. Research on problems of subject of BriberyThe author distinguished the"substantive"concept from"extent"concept for identifying the subject of bribery.Regarding to the definition of"State Organs"within the"extent"concept, the author's point of view is that the relevant statement in the Constitution stipulated the essential scope of"State Organs". The Communist Party of China and the Chinese People's Political Consultation Conference are regarded as"State organs"in legal practice due to their special position granted by the Constitution. For the rest of other government agencies that carry out state function shall be considered as Para-state-organs as well. After research on relative legal regulations, the author believed that"state-owned corporations and enterprises"shall be defined as the companies and enterprises that solely owned by the State.In the contrast to"substantive concept", there are no common agreements on the theory of"performance of public service"at president. The author clarified general definition of"public service"through the study of its basic meanings, and further developed its sense for criminal law, i.e."performance of legal activities such as organization, leadership, coordination, supervision and administration, etc. for States and social benefits that posses clear purposes and functions".II. Research on problems of object of BriberyIn this section, the author compared and analyzed different academic thoughts such as simple object theory, complex object theory and compound object theory. The author elaborated that, under the system of"simple object theory", academic thoughts that incorruptible performance of one's duties and related theories like non-sellable, non-purchasable and integrated performance of one's duties all bears reasonable intension.The author believed that, State functionaries are granted obligation that accompany with the authorities when they conducted rights to perform their duties. These obligation included execution the rights only for public purpose, never be unworthy to the trusts of the People who granted the rights, working due to diligence, never selling the rights to anyone other than the one who granted the rights, etc.The actors of bribery crime breached basic principle that the public rights are non- sellable when they trade rights as one of the merchandise. To bribees, they are always in the point that selling rights. Therefore, the author stands for the viewpoint that"professional behavior are un-sellable".III. Research on problems of subjective aspects of BriberyIn this part, the discussion included if there exist"consequential intent", the content of actual intent and how to requisites of"seeking benefits for others"in bribery.The author believed that, there existing the so called"consequential intent"in subjective intention of bribery.For some supportive theories, the consequential intent include the following scenarios: (1) one adopted an indifferent attitude on purpose or not, just following the consequence; (2) it's obviously that one doesn't intent to do so but let it happened because of some reason that can't care about the consequence; It's clear that though the bribees doesn't seek trade of"money-for-rights"but subjectively doesn't against this consequence.In addition, bribery is kind of crime that is constituted by complex requisites, of which subjective intention are more complicated than most of other crimes, on where the theory of consequential intent based.Regarding to subjective intention of bribery, the author also compared the subjective intent from"deliberate seeking"model and"acceptance on purpose"model and summarized as follows: the bribees are fully recognized that the illegal benefit are the consequence of the advantage of one's position, and desired or don't interfere the exchange of illegal benefit from advantage of one's position.On the topic of requisites of constitution of"seeking the benefits for others", the author believed its importance to constitute to the crime of briber, and analyzed the following four kinds of circumstance in legal practice: (1) commitment (including clarified and tacit consent) without performance; (2) performed but infeasible; (3) performed but unsuccessful yet; (4) performed and successful. All above-mentioned behaviors have subjective motivation in common. Therefore, the author proposed to classify it to subjective requisites.IV. Research on problems of objective aspects of BriberyThe author believed that objectives aspects of bribery consist in two substantive characteristics, one of which is that the crime motivated by taking advantage of one's position for personal benefits; the second is that the action to realize above-mentioned motivation.1. Exploration on taking a advantage of one's positionThe author pointed out that the definition of"taking advantage of one's position"is not the one employed in Criminal Law but one in research of Criminal Law theories that contain the conception of"taking the privileged condition of one's position"and"the convenience related to one's position or authority".As per to"taking the privileged condition of one's position", the author explained, is kind of convenience caused by taking advantage of the privilege that belonged to his own responsibility to certain public affairs or influenced by one's authority related to his position. Regarding to"privileged condition to one's position", it means that one take the advantage of rights to restrict other states functionaries that concerned to many aspects such as personal rights and property rights, etc.Regarding to"convenience related to one's position or authority", the author supported to the viewpoint of non-restrict relationship in the first hand, then elaborated the concept of"position"and relationship between"position and authority", i.e.,"position"emphasis a lot of special status in sociological meanings like official rank and post instead of too much about"right", which bears no strict limitation of influence. The author believed that the post and position are very important in states functionaries'value system that will bring respects and great influence to all the others'.Based on abovementioned acknowledge, the author summarized the followings: (1) non-restrict relationships; (2) one's position posses exchange value; (3) one's position has indirect advantage to commissaries; (4) one's position or post has actual influence to other related states functionaries directly.2. Exploration on implementation of act of briberyThe author investigated action of bribery in new Judicial explanatory and real cases and gave a brief introduce to new criminal types of bribery from both bribees and bribers sides, such as requiring bribe in the name of"borrowings". In this section, the author also explored extent of bribery in terms of theories on property and financial incomes, theories on profitable assets, and theories of benefits. In the conclusion, it shown development of crime of bribe and the progress of the tolerance to bribery of a nation and the States, i.e., the more the society tolerate to it, the smaller the extent is, vise versa., and the accomplishment of Law system in China will demonstrate this progress too. At president, the viewpoint that"material benefits"be considered as one of the types of bribery had been widely accepted and be operative in legal practice.In the end, the author will this thesis will be of some help to the theoretical research of bribery and as well as judicial exercise.