Study On Some Issues About Crime Of Accepting Bribe

One of the typical Crimes by taking advantage of duty is crime of accepting bribe, which is severe social corruption. The crime will shaken the foundation to hold the reins of government and cause great harm to the nation. As a result, the crime has always been trounced by each governing class. So it is significant to delve into the crime of accepting bribe and grasp its substantive characteristics and constitutive requirements, so as to determine the crime accurately and severely punish the crime.The summary of crime of accepting bribe mainly explains the definition and types of the crime. It shows that the substantial characteristic of the crime is power-money deal. The summary also analyses the crime's substance and current situation about the crime's conceptual conflict. About the constitutive requirements, it focuses on the study of subject, position and interest requirements. The nature of the crime lies in the deviation from the probity being national functionary. As its legal imperative, taking advantage of duty convenience include taking advantage of one's own duty convenience and taking advantage of the others who have regulative relationship with him/ her, which is also taking advantage of duty convenience indirectly. The thesis focuses on the state functionary and analyses the definition, specific types, subjects and objects, and offers suggestions to complete the legislation defects for crime of accepting bribe.In recent years, increasing commercial crime largely impacts the criminal law. The subject category of crime of accepting commercial crime is widening, ranging from companies and enterprises to fields like education, science, culture, sanitation and sports. Obviously, these behaviors are applicable to current Criminal Law of the People's Republic of China rule No. 163"employees'crime of accepting bribe from companies and enterprises". It is difficult to define the scope of the subject, so it is necessary to enlarge the subject scope of the people from companies and enterprises who commit the crime of accepting bribe. Therefore, the thesis studies the scope of national functionary, analyses the specific scope of people holding the national functionary theory and analyses and defines whether special group such as the retired people can commit crime of accepting bribe.Taking advantage of duty convenience is the requirement of the crime of accepting bribe. The basic meaning is that the behavior must connect with the duty. The connection includes the realistic taking on the duty and some abstract official authority. Not only define from the fact, but also observe from the special status of the national functionary and carry on the value judgment referring to whether they infringe on the probity.According to No. 385 rule of Criminal Law, taking advantage of duty convenience is the requirement of the crime of accepting bribe. However, disputes still exist among the theoretical circles. It also has controversy and conflicts with judicial interpretation. Judicial practice also leads to the different judgments of guilty or innocent due to different understanding of taking advantage of duty. Combined with the historical development of the crime, the thesis explains the definition of the"taking advantage of duty convenience", and makes theoretical analysis of the"taking advantage of duty convenience". What is more, it briefly analyses whether"taking advantage of others'duty convenience","taking advantage of future duty convenience","taking advantage of past duty convenience"can lead to crime of accepting bribe.Most scholars believe that seeking profits for others is one of the objective conditions of the crime of accepting bribe. Most authors believe"the objective requirement of crime of accepting bribe is the doer using duty convenience accept and ask for the bribe to seek profits for him or her."The three aspects are closely connected and united together, constituting the objective of the crime of accepting bribe. By analyzing that seeking profits for others is one of the objective conditions of the crime of accepting bribe, further analysis of the profit requirement become the basis of studying whether the profit requirement affects the definition of accomplished offence and attempted crimes or not.Finally, the thesis analyses the defects and perfect of the legislation about the crime of accepting bribe. China as the signatory, UN Convention against Corruption stipulates that subjects of the crime should enlarge to foreign civil servants, international organization officials included. It analyses that the crime scope is too narrow in our nation's legislation. Compared with foreign legislation, our nation should apply to interest theory. Next it analyses the problems existing in legally-prescribed punishment. The nature of the crime of accepting bribe lies in that state civil servants gain an unfair advantage using duty and power. As a duty crime, the crime of accepting bribe can't be convicted without any duty. Therefore, the punishment of deprivation of qualification can deprive the subjective requirement to commit the crime again to let the punishment play its role. The crime of accepting bribe is also a typical greed crime. The criminals often hunt for property or other illegal profits. As a result, penalty can break its desire and criminal purpose, making the criminals get no interests to let penalty play its role. Seen from the legislation of every country in the world, the penalty is applicable to the crime world widely. Adding penalty against the crime can also warn those who attempt to abuse power for personal gains and finally dismiss the idea, making the punishment play its role to prevent crime from happening. However, our state criminal law applying death penalty against the crime runs count to the principal of suiting punishment to crime. The validity of the penalty deployment not only requires severe punishment for severe crime, light punishment for light crime and the punishment applicable to its crime, it also requires that the interests being deprived is equal with that the crime has infringed. Death penalty should be applicable to those crimes that have cost life, which is reasonable and valid. Combined with international situation about the crime of accepting bribe, it is suggested that our nation should add penalty and deprivation of qualification and death penalty should be restricted or eliminated to adapt to the international lesser crucifixion tendency.The crime of accepting bribe as a corruptive crime of dereliction of duty with social harm attracts great attention from every country's penal legislation and judicial practice. But the penalty system against the crime and penalty application is different in every country. Based on the current situation of our legislation against the crime, referring to other countries'legislation example and combined with the law research findings, the thesis adopts the method of combing the theory research with case analysis, analyses the subject, position, interest, completion of crime and criminal attempt, and finally offer the suggestions to modify and complete the legislation.