The Crime Of Taking Bribes By Non-state Staff

The crime name of taking bribes by non-state staff is determined by the Supplementary Provisionsâ…¢of the Supreme People's Court and the Supreme People's Procuratorate on the Determination of Crime Names in the Enforcement effective as of November 6, 2007(hereinafter referred to as Supplementary Provisionsâ…¢).Its predecessor is the crime of taking bribes by company or enterprise personnel.Along with the rapid development of China's economy,there emerges a great many economic organizations other than companies and enterprises,such as individual proprietorship enterprises,partnership enterprises,private schools,private hospitals,various social associations,institutes,federations and chambers of commerce,etc.If the non-state staff of such organizations take advantage of their office to demand and accept bribes,it is difficult to convict them a crime according to the Criminal Law(1997).In view of this,in 2006 the subject of crime of bribery was extended to personnel of the company,enterprise and other organizations in the Amendment to the Criminal Law of the PRC(â…¥),and the original crime name was changed into the crime of taking bribes by non-state staff in the Supplementary Provisionsâ…¢.The amendment of this crime plays an active role in cracking down on the crime of taking bribes by non-state staff of companies, enterprises and other organizations.Part One gives a brief introduction to the crime of taking bribes by non-state staff.The present author first briefly describes the legislation history of this crime,and then introduces relative legislations related to the crime of bribery in major foreign countries.At last,the present author discusses the social harmfulness of this crime,so as,to illustrate the significance of independent existence of this crime.Part Two analyzes the crime constitution in terms of the subject and the objective elements of this crime.The subject of this crime includes non-state staff both in state-owned organizations and non-state organizations.Based on this classification,the author further subdivides those non-state staff,that is,the managerial personnel in non-state organizations appointed by state organ,state-owned company,enterprise and institution;the managerial personnel in non-state organization;the non-state staff who neither conduct managerial task, nor purely engage in labor service;the non-state staff engaging in labor service only.The discussion focuses on whether the aforesaid non-state staff can constitute the subject of this crime,coming to a conclusion that all the above mentioned personnel except those engaging in labor service only can constitute the subject of this crime.Then,the author analyzes the objective elements of this crime in terms of the general behavior and special behavior. General behavior refers to directly and indirectly take advantage of their office and convenient conditions respectively to seek profits for others.The author introduces and evaluates some viewpoints in the field of criminal law that whether seeking profits for others constitutes the objective element or the subjective element,coming to a conclusion that it should constitute the objective element.It is essential for the accomplishment of this crime to seek profits for others despite of accepting bribes actively or passively.Seeking profits for others includes commitment,conduct and accomplishment.Finally,the present author discusses the special behavior that constitutes this crime.Part Three discusses the determination of this crime from five aspects.First,as for the problem of attempt and accomplishment of this crime,the present author holds that the accomplishment of this crime must include the behavior of accepting bribes and the commitment of seeking profit for others.Second,the author distinguishes this crime form the crime of bribery.The third part briefly introduces the guilty and not guilty of this crime.Forth, the author discussed the determination of the joint crime of this crime.The last part analyzes disputes on the range of bribery.The author concludes that the range of bribery should include property,property benefits evaluated by monetary and other illegal non-property benefits,not just limited to property benefits.Part Four discusses legislation improvement for this crime from three aspects.First,the range of bribery should include property,property benefit and other benefits.Second,indirect bribery constitutes this crime.Third,establish punishment of fine penalty.Forth,establish punishment of depriving qualifications.