Analysis Of Some Difficult Questions Of The Subject Of Crime Of Taking Bribes

The definition of the scope of the subject of taking bribes is the requirement by the principle of a prescribed punishment for a specified crime for judicature and enactment of criminal law.Because of the limitation and backwardness in legislation,the Criminal Law can't apply to some new facts arising in the transition period from old to new system at present.It is hard to define the scope of the subject of crime of taking bribes,and there is always divergence between the theory world of criminal law and the judicial organ about how to recognize the subject of crime of taking bribes.First of all,this paper studies the historical evolvement of the legislation of the subjects of taking bribes.The history of criminal legislation shows the subjects of crime of taking bribes and of embezzlement have to be the same one for certain long time.When the crime of taking bribes was separated from of embezzlement,its subject was still the national staff. With the development of criminal legislation,especially after revising Criminal Law,the subjects of the crime of taking bribes changes a lot.Before 1979 Criminal Law,taking bribes is still one kind of embezzlement,its subject was same to the one of embezzlement.When 1979 Criminal Law was made,crime of taking bribes was separated from of embezzlement. And its' subject was the national staff.When it come to the 1997 Criminal Law,the crime's subject is the national staff,including typical national staff and quasi national staff.In the second part,the paper starts from the connotation to identify the nature of the national staff.In accordance with criminal legislation's history,the author thinks the national staff's essential connotation is "performing official duties".About official duties,there are three different opinions:state and collective affairs,state affairs,public affairs.The author approves of the third opinion after discussing whether official duties covers social management of public affairs and collective services and discussing the characteristics of public administration.According to the third opinion,official duties covers pure national affairs,management of social affairs participated by state and state-owned companies, enterprises,state-owned property management services.And the staffs engaged in these types of affairs could be the subjects of crime of taking bribes.In the third part,the paper applies the theory mentioned above to several real typical cases.The paper puts forward its viewpoint on whether staffs entrusted to manage,operate state-owned property,retired national staffs,deputies to the people's congress,"false national staffs",can be the subjects of the crime of taking bribes.These four problems often appear in the practice of criminal justice.Finally in this paper,the author reviews and exams the current situation of the legislation of the subject of crime of taking bribes based on previous expound.And the author suggests making up for the defects in the legislation of the subjects of crime of taking bribes by revising the value orientation of the legislation of the subjects of crime of taking bribes, interpreting legislatively the "official duties engagement",taking a substituting reflection on the conception of the national staff and etc.