On Constitutive Element Of "Securing Benefit" In The Crime Of Taking Bribes

Taking bribes, as a crime of corruption, at all times and in all prevalent, harms seriously to the society, and is taken as focus of the Government to actively combat. The criminal legislation refferred to Taking bribes, in different historical periods, different countries and regions show some similarity, however, there exist more significant differences. In 1997, criminal law was re-drafted , which constitutes the concept of Legal Principle, and the elements of the crime of Taking bribes is newly constituted. The academia divides Taking bribes into two types:Dmanding bribes and Accepting bribes. Compared to many countries and regions, in our country the legislation about Accepting bribes set the provision "to secure benefits for others" as element of crime of Taking bribes. The element itself is quite "characteristic", and filled with rich connotation; At the same time,it related to other elements of the crime of bribery, which produces complex impact to the cognizance of Bribery. In this paper, taking the element as the breakthrough point, resorting to comparison, the interpretation of the Criminal Code, such as study methodology, it is studyed from the factual assumption and the ideal assumptiont, including the elements of the ontology, comparison awareness, impact awareness and abolition awareness.The Article is divided into four sections, about 35000 words. The first part is about Constitutive Element of "Securing Benefit" , compared to various legislation of Bribery in different periolds and countries, it is concluded that Constitutive Element of "Securing Benefit" is very distinctive. Most countries and regions do not take Element of "Securing Benefit" as the Constitutive elements of the crime of taking bribes. In most cases, public officials keep in line with the execution of their duties or violate the requirements of the acts of bribery in terms of people ,which is the profit behavior from the aspect of Briber , while "for the benefit of others" and "the implementation of compliance with or breach of duty requirements (including action and omission) "is filled with the same meaning. In most countries, this is only the circumstances of the crime of accepting bribes of sentencing, but in Chinese legislation, it is the Constitutive elements of the crime of Accepting bribes, which is also convicted as standard to be taken as crime.To undertake the first part, the characteristics of Constitutive Element of "Securing Benefit" is based in the factual assumption, the likelihood is based on the position of our country to respect the existing legislative cases, resort to the method of explainning, Element of "Securing Benefit" of the ontological discussion. Profit-type elements are accepting bribes constitute an indispensable element, but it is not obtained from the type of the elements of the crime of demanding bribes. Elements for this property, after comparing subjective constitution, it is said shortcomings of the old post, the article has insisted that the new objective, it is said that "the promise of others to secure profit," promised to include express and implied promises of the promised " Securing Benefit"" could be material benefits which can also be non-material interests, including the proper nuclear improper, others who can be bribed, but also is the third person. In addition, because the object of the criminal law has limited the interpretation function, that part of the object of taking bribes was also discussed that the object of taking bribes are functions of behavior can not be bought.The third part breakthrough on ontological awareness of Constitutive Element of "Securing Benefit" to explore the complex relationships between the elements and other elements and to explore its impact to the other problems of bribery . Although it is promised to seek benefits for others as accepting the implementation of type of taking bribes, it is taken as the core of the implementation of its behavior. The standard to cognizance accepting bribes should be the kind of type that the public office agree to accept the staff or the request for property; In addition, the emotional investment, after taking financial and other circumstances would constitute the crime of accepting bribes, which is found complexly, and Constitutive Element of "Securing Benefit" is also a more complex problem. This article has also discussed. Some circumstances may constitute Implicated Offender, and the remaining case is the real crime. For this crime, and other crimes, with the exception of the law has special provisions which should be Combined Punishment.The first three parts of Elements of "Securing Benefit" are discussed from the factual assumption, and the fourth part increased to the ideal assumption of "Securing Benefit" retention or abolition of the Elements which begin discussed. Demonstrated the retention of that part of the abolition of the two views, the abolition of article in the affirmative at the same time are the traditional reasons for that: the object of taking bribes for the job are not buying behavior, and profit in excess of this element has been the object of evaluation scope; the existence of elements of the criminal law of taking bribes has become exceptionally difficult to explain; and judicial practice has emerged a tendency to weaken the elements. From the improvement of legislation, the needs of the fight against crime, it is proposed to cancel the Elements.The last part is the conclusion of the article. For the situation of legislation , the majority of cases can be explained by means of criminal law, which can weaken Elements of "Securing Benefit" of accepting bribes in the role of a crime, and realize the elimination of a number of adverse effects. However, for the purpose of common understanding, perfectiving the criminal law, maximizing the purpose of starting the fight against crime, Element of "Securing Benefit" should be abolished.