The Meaning And Justification Of The Objective Constitution Of Mediation Bribery

According to article 388 of Criminal Law of the People's Republic of China (1997 amendatory version), "any State functionary who, by taking advantage of his own functions and powers or position, secures illegitimate benefits for an entrusting person through another State functionary's performance of his duties and extorts from the entrusting person or accepts the entrusting person's money or property shall be regarded as guilty of acceptance of bribes and punished for it." This article also has been recognized as "mediation bribery" or "indirect bribery" in crime research. In our country legislation on mediation bribery was initially developed from "Some Notes on the Supplement of Bribery Punishment" jointly issued by the supreme people's court and supreme people's procuratorate, which then was included into the 1997 Criminal Law, in which article 388 specified the so-called mediation bribery, and together with "taking advantage of his own functions and powers or position", "securing illegitimate benefits for an entrusting person" has been acknowledged as two primary premise for conviction of bribery. However, in 1997 Criminal Law there is no independent crime for mediation bribery, which was instead classified and treated as general bribery. Therefore, since the 1997 Criminal Law, vast divergences, such as how to recognize "taking advantage of his own functions and powers or position" or "illegitimate benefits", have emerged in justice practice. And in the newly amendatory Criminal Law (version VII) passed at the seventh meeting of the Standing Committee of the Eleventh National People's Congress on February 28, 2009, a supplement clause, which included close relatives or persons of State functionary and also those that resigned as prospective bribery subject, has been added to and greatly enhanced the original article 388 for mediation bribery. Thus, the scope of traditional subject of mediation bribery has been tremendously expanded in the new amendment, then non-state-functionary separately convicted for mediation bribery has been a common fact.In this paper, based on a bribery case of Mr. Su, which the author went through in person, we will inquire the judicial recognition of mediation bribery, and then discuss some latest hot issues, such as "taking advantage of his own functions and powers or position", "illegitimate benefits" and "close persons". In the end, we will fully examine article 13 in the amendment of Criminal Law (Version VII), and explore its impact on the recognition of mediation bribery and its possible defects.