Research On Several Puzzling Questions About Judicial Affirmation Of Bribery Crime

This paper is totally divided into three parts, the three hotspots of the affirmation of the joint crime of bribery, the affirmation of working for the interests for others and the affirmation of the new type of bribery crime and puzzling questions of bribery crime are tried to be deeply researched and discussed, legislative spirit of the bribery crime can be realized through that the controversial questions are discussed, and then the boundary of crime and non-crime can be made clear in judicial practice.The first part is about the questions of affirming the joint crime of bribery. The characteristics of the joint crime of bribery crime are firstly interpretated in this paper, it points that the joint crime of bribery crime differs from the joint crime of general subjects and has its own particularities. The two opinions about whether it can be constituted joint bribery or not that functionaries in the state organ and non-functionaries in the state organ collude with each other and accept bribes are introduced next in theoretical circles, that is, negative theory and positive theory, the author thinks that the opinion of negative theory is scientific and puts forward that the near relatives of functionaries in the state organ are bound to be given the loose to escape from the punishments of the joint crime of bribery if functionaries in the state organ and non-functionaries in the state organ accept bribes in collusion with each other but they are separately given different punishments. The questions about how the joint bribery of functionaries in the state organ separately with functionaries in the state organ, non-functionaries in the state organ and personnel of incorporated business is characterized and treated in judicial practice are analyzed, judicial solutions to deal with and settle down the questions are put forward. The differences of the joint crime of bribery crime and introduction of bribery are discussed finally, it thinks that if one behavior not only constitutes the crime of introducing bribery but also the joint crime of bribery, it should be affirmed as the joint crime of bribery but not the crime of introducing bribery, according to the penal law that it should be sentenced from a felony if one behavior offends multitudinous accusations of crimes.The second part is about the questions of the affirmation of working for the interests for others. It contents of three parts. First, it is about the controversies about the status attribute of working for the interests for others in the requirements of bribery crime, it is not made out regulations about which working for the interests for others is subjective requirement or objective requirement by the current criminal laws and judicial interpretations, which is considered in this paper. Three opinions on the location of working for the interests for others in the educational circles of criminal law are enumerated in this paper, the author thinks that these three opinions all have their own reasonableness and have their limitations in judicial practice through comparative analyses, bribery crime virtually is drawn in a circle and set up in a boundary by behavior theory and the scope of bribery crime is reduced greatly, by which the actors who illegal accept properties of other person but don't work for the interests for other person will be given loose; there are many ulterior promissory behaviors in commitment theory and it is very difficult to have evidences to proof, by which the difficulty for procuratorial organ to take evidences is increased, so it has no maneuverability; if objective activities which have been promised but haven't been worked for interests are negated by bribee in subjective requirements theory and subjective evidences are difficultly to collected, promise can be affirmed in theory, but it generally can't be affirmed in the practice of lawsuit. Second, it is about the problems which are resulted in the affirmation of working for the interests for others, it is pointed out in the paper that if judicial officials have various recognitions and different opinions about working for the interests for others, different judicial affirmation may be affected to be worked out about the same cases of accepting bribes and actual results of fighting against accepting bribes may be affected. Third, it is about the solutions to settle down the problems of working for the interests for others in judicial affirmation, working for the interests for others is neither the subjective requirement of constituting bribery crime nor the objective requirement, it objectively requires only having behaviors and doesn't require having results in the objective requirements of taking bribes, that is, the realizing of interests. It requires only intending to take bribes and doesn't require individually having the intentions to work for the interests for others in the subjective requirements. According to the criminal law in force, it has no practical meanings because the intentions or activities which take the properties of other person but don't work for the interests for other person can't constitute crimes at all. In the view that there are many theoretic contradiction and defects in the requirements of working for the interests for others it self, by which investigations and punishments of bribery crime have been seriously restricted, constitutive requirements of working for the interests for others in bribery crime are put forward to be cancelled by the author and be located as the plots of sentencing bribery crime. It is not only in line with the criminal theories and the needs of fighting against bribery crime in this country, but also complies with the international tendency of the legislation of bribery crime and accords with UN Convention against Corruption.The third part is about the questions of the affirmation of the new type of bribery crime. It contents three aspects. First, it is about the species of new type of bribery crime, the species of new type of bribery crime and the differences between these crimes and traditional bribery crimes in current society are discussed deeply. Second, it is about principles which should be grasped in the affirmation and treatments of new type of bribery crime, in judicial practice, the three principles which should be grasped when new type of bribery crime is affirmed and treated by judicial authorities are: Firstly, it should be set foot from practice and put urgent need in the first place, the problems about the boundary of policy of the law which are met and need to be specified urgently in investigating and dealing with bribery crime should be mainly settled down. Secondly, relevant legal boundaries of which recognition in all directions about investigating and dealing with bribery crime are relatively coherent should be specified, the problems which are very controversial and doubt should be put on the back burner in accordance with the law, reliably and according to the provisions of criminal law and the substantive characteristics of power of bribery crime and interest transactions. Thirdly, it should be combined with roughness and looseness, not only should corruption crime be attacked as strict as possible so that badger hat can't escape from the arm of the law, but also laws, policies, society and other factors should be treated differently and planed in entirely, reasonableness of attacking scope should be ensured. The third is the affirmation of new type of bribery crime, the following two points should be mainly grasped when bribery crime of trade mode is affirmed: the one is, it is not included into bribery crime that merchandise are purchased with favorable price according to various kinds of favorable terms of dealing which have been set up in advance by merchandise operators, the other is, favorable shopping isn't the acceptance of bribes regulated in opinions should be understand fully; capitals and bonus are inappropriately served as the amount of accepting bribes to be affirmed when the bribery crime of carried interest and bonus is affirmed; the problems about the nature and attribute of the bonus of carried interest in the cases of accepting bribes should be noticed when the bribery crime of cooperation and investment is affirmed; normal operation of cooperative investment and the acceptance of bribes in the name of investment should be noticed to be defined when the bribery crime of cooperation and investment is affirmed; earnings given in the name of the earnings of investing and financing should be noticed when the bribery crime of entrusting financing is affirmed; it should be distinguished from the activities of joining the gambles when the bribery crime of gambling is affirmed; particular relevant party and non-particular relevant party have differences in the problem of constituting bribery crime, which should be noticed when the bribery crime involved by particular relevant party is affirmed; two points should be noticed when the bribery crime of grabbing money in active service and accepting bribes after termination of service is affirmed: the one is whether functionaries in the state organ work for the interest for client during the period of holding the post or not, the other is, it depends on whether it has promises or not.