Research On Some Issues Of The Natural Subject Of Bribery Crime

Natural bribery crime is an important component of job-related crimes, is the important manifestations of the national staff and non-national staff of corruption. Due to the ambiguity of legislation, in the theory and practice, there has been widespread and profound academic discussion and contention about the standard and range of the natural subject of bribery crime. In recent years, as the diversity and complexity of bribery crime increasingly demonstrated in the judicial practice, has far beyond the provisions of China's Criminal Law on bribery, resulting in the existing criminal legislation more difficult to deal with. The growing of natural bribery crime, both is a catalyst of the new social background as the dominant soil , but also reveals that China's existing legal provisions on bribery have been seriously lagging behind in the objective form of development in certain areas. Defects and deficiencies in the law itself, caused blow ineffective with bribery crime, in particular new types of bribery. Despite constant strengthening of good governance, increase anti-corruption efforts, but only continuously improve legislation and will provisions concrete, is the fundamental solution to the fight against crime. In this paper, from a combination of theoretical and practical point of view, combined with the existing criminal legislation and judicial interpretation, writer firstly analyzes and discusses the defining standard and the specific scope of the three kinds of the subjects which constitute the natural bribery crime, namely, national staff, companies, enterprises and other units of staff, close to the person with national staff (including the separation state staff). Then focus on several difficult problems existing in the current judicial practice, writer makes a research, and puts forward own views. At last, On how to improve the natural subject of bribery crime, writer puts forward some suggestions.The article is divided into five parts.Part I, Introduction. This section briefly describes the current crime of bribery in China has shown the new features, namely, bribery diversity and plurality of bribery, and bribery crime, the status of research studies proposed the need for crime of bribery. In this paper, the object on the scope and research methods are briefly described to clarify the purposes of this article, leads to the body.Part II,is about the identification of the natural subject of bribery crime. This part separately discuss the definition of standard and the specific scope of the three main subject that constitutes natural crime of bribery: national staff, companies, enterprises and other units of staff, and the people close to national staff (including the separation of national staff) .First, the legal definition of the "bribery subject". About the defining standard of subject of bribery——national staff,writer firstly introduces and analyses theory of body, official business theory, and combining theory which combines official business theory and the theory of body, then points out the conclusion that writer approves the official business theory on basis of rightly comprehending engaging in the official business and the body of state functionary, relation between them. To a correct understanding of this standard, this article further discusses the " public affairs " means. At last, according to the relevant law, writer makes a brief overview to the specific scope of the subject of bribery. Regarding that the specific scope of the subject of bribery includes two categories: First is the staff of state organs, Second is the quasi-national staff.Second, the legal definition of the subject of the "non-national staff of taking bribes". In this section, writer regard that the concept of the "non-national staff" is a subject of accepting bribes - "national staff" in terms of the concept of opposition, so to submit its standard should be defined as "non-official," so " engaged in non-official " is the essential feature of non-national staff. At the same time, to further explore and analysis the ranges of companies, enterprises and other units. On this basis, writer presents the "non- national staff" will cover two categories, first, the non-national staff of the non-state-owned companies, enterprises and other units, second, the non-state personnel of the state-owned companies, enterprises and other state-owned units. Finally, the legal definition of the subject of the "use of the influence of taking bribes". In this section, writer firstly interpret the provisions of Article 13 of "the Criminal Code Amendment (7)" , that use the influence of bribery and with the "Penal Code" Article 388, paragraph 2, compared to the good offices of bribery, In the "good offices" and "bribery" original meaning of the behavior of these two expressions and the logical relations is not much difference, only in the actors have taken place in major changes. That the new subject mainly includes the following five categories: national staff of close relatives, and people close to national staff, national staff separation, separation of the national staff of close relatives, and exit of people close to national staff .PartⅢ, about the hot, difficult problems in the process of recognition of the natural subject of bribery crime . This section is the focus and main part of the full text. That part mainly explore and research some hot, difficult problems aroused considerable public concern in detail, which appears in the process of recognition of the natural subject of crime of bribery. Contents are summarized as follows:Problems about the defining standard and specific scope of the subject of the"use of the influence of taking bribes"- closely connected person.For this problem, writer first analyzes the identity characteristics of the closely connected person, and then analyzes the connotation and denotation of closely connected person and certain affiliated person, pointing out that the key to the identification criteria of closely connected person depends on how to correctly understand the "influence" . Finally, writer discusses the specific scope of closely connected person, and think that the scope of close relatives including spouses, parents, children, brothers and sisters; and other close persons will cover addition to the "near relative" other than relatives, classmates, teachers, students, alumni, colleagues, fellow, friend, leader around drivers, secretaries and so on.Qualitative behavior problems about the doctors use the right to prescribe accepting kickbacks and collect red envelopes.About the question can doctors become the subject of crime of bribery, writer makes a brief introduction and analysis on the existence of a variety of academic perspectives, as well as the provision of the two high "on the handling of criminal cases of commercial bribery law applicable to a number of views on the issue," which convicted and punished the act with the "non-national staff of taking bribes", and points that at present, China's "Criminal Law" not yet defines these acts of taking advantage of job-accepting improper benefits as crime, for doctors'behavior of using the right to prescribe accepting kickbacks, can not be based on non-national staff accepting bribes to be convicted and punished, this approach to expand the practice of interpretation is not quite proper. For the question whether a doctor charge for a red envelope can constitute a crime of bribery or not, this article points out that it doesn't constitute the crime of bribery, such acts should be punished separately on the basis of distinguishing the different situations.Question about defining the act of journalists'taking bribes in the course of coverage.For this problem, first, writer introduces and analyses a variety of viewpoints existing in the academics and practitioners, then analyses the identity of journalists, as well as the meaning of the right of news coverage and the right of reports, at last on this basis, writer points out that journalists drawing on interview right and reported right to bribe are neither the appropriate subject of bribery, nor the appropriate subject of the non-national staff of taking bribes.Part IV, some comprehensive suggestions of the natural subject of bribery crime . On how to perfect the defects of China's natural subject of bribery crime, writer puts forward several legislative ideas. Including: through legislation explicitly recognized the nature of bribery of the main criteria; Clearly defined in legislation that the democratic parties, the Chinese Communist Party organs at all levels as well as the CPPCC organizations at all levels belonging to the scope of state organs; defined the meaning and the scope of a clear and specific people by legislation; by modifying the legislation to facilitate the use of occupational bribery acts of officers into the crime of bribery of non-national staff of the main range. Part V, Conclusion. This part summarizes the full text and proposes the author's a bright future on the Improvement of bribery crime legislation.