Thinking On Offence Of Commercial Bribery In View Of Legislation In Chinese Criminal Law

Commercial bribery is the concept of economic law at first, and then it becomes a concept of criminal law. The crime of commercial bribery is the inevitable outcome which the market economics has become to the definite stage. Commercial bribery refers to the acts that a proprietor sells or purchases commodity by means of suborning the agent or employees of the other proprietor. For the essence, it's the acts that a competitor obtains the opportunity and harms the lawful rights and interests of other operators and disrupts social economic order by giving bribes. Commercial bribery is an unfair competitive behavior that exists generally but is prohibited by the Competition Law of many countries.Offence of Commercial Bribery has become a cancer of the society. Along with the development of the market economy, commercial bribe crimes become harmful for the economic construction and destroy to the incorruptible & moral images of pubic servants, probably resulted in distrust towards homeland government. It has important theoretical and practical senses to establishing a better competitive order and more healthy socialist market economy.The article comprises altogether 3 parts. The first part explains the illustration of basic theories on commercial bribery, including different concepts in economic, administration existence, especially in criminal law surroundings, its essence & constructive elements. First, author pointed out 2 presumptions of commercial bribery crime after over viewing with definitions in western countries. Then, the outline of commercial bribery, in author's mind, is a collective name with action purpose take place in commercial area. However, four material elements of a crime (i.e. crime object, crime main body, objective aspects of crime, subjective aspects of crime), can explain current commercial bribery in practical meaning.In the second part, a list of current law, regulation & typically used measures in bribe are given out, tracing footprints of China's anti-corruption development, author summarized the conditions and deficits in undergoing system of rules in China, to name it: the deficits of this law has vagueness in definition, narrowness in provision of main body of the crime, simple coverage in "bribe" content, lack of fairness towards offerer & accepter in terms of penalty , penalty categories are not fit with cost of bribe returns, etc. The third part gives proper advices on how to effectively prevent commercial bribe in China, through learning from the experience of foreign legislations in such western countries as America, Germany and Japan, in order to gives some enlighteness to establish our system of legal regulation to unfair competitive behaviors by contrasting. The advices are as follows:(1) Enlarging the main body of commercial bribery with time. As the variety in forms & updating contents, China legislation authorities must add up more categories into the criminal main body, avoiding luck fish escaped net of the law.(2) Reasonable explain the coverage of "bribery". As compliance with the law & experience in international anti-bribery battle line, China should adopt the non material interest into the concept of "bribery", the essence of bribery no matter what appearance changes.(3) Balancing the punishment of offering bribe & accepting bribe. Chinese criminal law always punished the accepter of the bribe heavier than offerer; we should treat the two sides fairly in view of Fiduciary duty& violation behavior respectively.(4) Reform Penalty Categories. As the commercial bribery comes from economic areas, we should increase the fine, add severe economic punishments, get rid of the death sentence in the penalty categories.Comparing to a specific definition of Offence of Commercial Bribery from Anti-Unfair Competition Law of the People's Republic of China, Commercial Bribery Crime does not have an exact definition in Criminal Law in terms of connotation & extension. But it comes from economic development, and will stay in that area too. As China is now in the turning point of marketing economy, many regulations are being improved & learned from other western countries. Therefore, commercial bribery is a long time coexistence with mature of market economy structure established in China. Author hopes, in future legal practice, on one hand, Chinese statuary bodies keep proposing improvement & perfection against the Commercial Bribery Crime, extending its definition to cover reasonable criteria fitting modern society; on the other hand, legal objective setting in public is also critical. By combination of both approaches, we can effective crack down & prevent Offence of Commercial Bribery.