Research On Some Problems Concerning The Establishment Of The Penalty Of Bribery Crime

The phenomenon of bribery almost begins to appear with the development of political civilization of mankind simultaneously. Power, certainly safeguard or deprive some kind of interest. The executor of power is inconsistent with the main part of interest that the power guaranteed or deprived, so, power is born to have the possibility to be abused. Unfortunately, human beings have never stopped abusing power including bribery crime. Nowadays, how to limit the bribery crime within the scope that doesn't to affect the normal development of human civilization gets the most attention and also racks people's mind. This thesis is divided into five parts to analyze the present problems concerning the establishment of the penalty of bribery crime.The first part is about the problem that the bribery crime is convicted and taken punishment by the amount of bribe. In this part, the analysis starts from the current situation that the standard of the amount of bribery stipulated by our country's criminal law. Bribery crime, as one of the few kinds of crimes whose amount standards for convicting crime and taking punishment are stipulated by law directly, on one hand, it has relatively objective and direct judicial effect, on the other hand, it indicates the limitation of much too rigid thinking mode. Thereby, a good many of other problems caused by amount standard in judicial practice can be educed. Then, through some practical cases to prove that the money and goods taken by criminals as bribes are not in direct proportion to the social harmfulness they caused at all. Convicting bribery crime simply by the amount of bribe is also adverse to maintain the stability, seriousness and authority of the law. The amount standard is easy to give the bridle to commit crimes and give some criminal space to criminal offenders. At the same time, the amount standard is difficult to be investigated and verified. After that, based on the above analysis, canceling the simple amount standard for bribery crime is propounded in this part. In the provision on legally-prescribed punishment, bribery crime takes the state functionaries who use the convenience of position to extort or accept bribes as the essential element to convict crime. If concerning about the scope of attack, large amount of bribery or other serious circumstances could be taken as the measurement of penalty.The second part is about the problem about the equal measurement of penalty between bribery crime and corruption crime. In this part, after an aggregate analysis of the current provision about the measurement of penalty of bribery crime and legislative evolution, explain that equaling penalty establishment of bribery crime with corruption crime has already not conformed to the requirements of modern law rules. Although bribery crime has been defined as one form of expression of corruption crime in criminal law, bribery crime and corruption crime are two independent accusations which are entirely different in nature. The two crimes are totally different in criminal means, subjective intention, and social harmfulness. Thereby, propose some perfect suggestion for the provision on the punishment for bribery crime, criminal law should focus on the characteristics of bribery crime to stipulate independent legally-prescribed punishment and make a rational distribution of the penalties of life, liberty, property and qualifications, so as to form a complete punishment system and remove the old concept of equaling bribery crime and corruption crime.The third part is about the punishment scope and types of bribery crime. In this part through comparing the existing provisions of the sentencing scope, it can be seen that the specific penalties of bribery crime are not comprehensive, the scope between sentencing level of different penalties is too narrow with too many overlaps. Moreover, with the rapid development of economic, the prison terms of most bribery crimes under the existing sentencing provisions are crowded between 10 to 20 years, which can easily cause the phenomenon of non-unified sentencing. For this reason, a perfect suggestion for sentencing scope of bribery crime is stated at the end of this part, which propose to change the overlapping phenomenon of sentencing scope, establish an reasonable sentencing scope and avoid the phenomenon of non-unified sentencing caused by amount or uncertain about the circumstances, so as to achieve that different crimes can be punished by appropriate penalties. It is suggested that the penalty of bribery crime can be stipulated like this: state functionaries who commit bribery crime with a relatively large amount or other relatively serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and can also be sentenced to confiscation of property and fine;if the amount involved is huge or there are other serious circumstances involved, the one shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and be sentenced to confiscation of property and fine; if the amount involved is especially huge, or there are other especially serious circumstances involved, the one shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, confiscation of property and fine.The fourth part is the problem that fine punishment is not set up in bribery crime. This part begins with the overview of fine punishment and its current applicable condition, then puts emphasis on that countries in the world pay more and more attention on the function of fine punishment, but china's present criminal law doesn't give a correct understanding about the position and function of fine punishment. In the field of our country's criminal law, the understandings of property punishment are not uniform, some scholars are prejudiced against property punishment, they think property punishment is the product of western country criminal laws, a exculpatory penalty for the rich, a kind of legal rules by which money can atone, Due to the existence of this understanding, it also affects our judicial practice on the property punishment. In this part, from the modern economic criminology's perspective, make a scientific configuration and comprehensive analysis about the application of bribery crime to fine punishment, and provide an advantage to achieve both the economical and social benefits. Suggestions are as follows: for the bribery more than 50,000 Yuan, can be sentenced to confiscation of property in part or in whole, for the bribery less than 50,000 Yuan, should be stipulated to a fine sentence, For the bribery crime with small amount and ordinary circumstances, the application of fine punishment can refer to general property-type crimes such as theft, fraud, etc. to increase the selection of fine punishment, for the one exempted from punishment under any sorts of sentencing circumstances, prescribe fine alone.The fifth part is the application of qualification penalty. This part begins with the general statement of qualification penalty, and then leads to the current situation of the application of bribery crime to qualification penalty in our country, and limitations on conditions and contents of the application of qualification penalty. Under China's current criminal law, for the bribery crimes which depend on the qualification of national staffs, in addition to be sentenced to at least life imprisonment, the penal code does not require additional deprivation of political rights, but for voluntary manslaughter, rape, arson, explosions, placing dangerous substances, robbery and other criminals who seriously undermine the social order, criminal law stipulates the deprivation of political rights. From the aspect of judicial practice, except for political crime, deprivation of political rights is especially suitable for the post crimes of the civil servant, that is, bribery crime. There are lots of instances of legislation in foreign countries, for instance, Russian Federation Penal Code stipulates that a civil servant who commits to bribery crime, whatever the type is, he will be deprived of certain positions or the rights to undertake certain activities during less than three years. Therefore, it is ought to apply qualifications penalty for all the bribery crimes, it is also reasonable to apply qualification penalty alone to bribery crime, so as to maintain the uncorrupted team of state functionary and make appropriate penalty according to the crime.