Study On Several Issues Of Mediating Bribery Crime

Existing Penal Code article388 stipulates:"The national staff, taking advantage of facilities of his power or position, seeking improper interests for other requester by using other national staff's behavior of job, requesting property or receiving property, is penalized the crime of taking bribes."Comparatively speaking, existing Penal Code article385 section1:"The national staff, in the use of facilities of his power or position, seeking interests for other requester, requesting property or receiving property, is penalized the crime of taking bribes."is regarded as the general regulating of the crime of taking bribes. In contrast, not only the same opinions are existed between the mediating bribery crime and general crime of bribery, but also some differences are existed. Dispute of discussing about the mediating bribery crime in theory and practice mainly focuses on the range of subject, elements of competence, elements of profit, criminal charge independence, etc. the mediating bribery crime cases in the Chinese judicial practice are not uncommon. With effective promoting of Chinese anti-corruption work in the new era, a related studying of exploration to these issues is significant in the theory of criminal law and judicial practice. This paper selected a typical case to analyze, and starting from those issues above.The first part, the relating situation of the selected case is briefly introduced.The second part summarized the opinions and their reasons between the prosecution and the defender, then, proposes the main differences about how to identify the mediating bribery crime.The third part, legislative development of the mediating bribery crime in china has been introduced simply, and analyze relating regulation of the criminal constitutions about the mediating bribery crime, put forward some typical different comprehension about the object of the mediating bribery crime.The fourth part, the three main disagreements about how to identify the mediating bribery crime are proposed separately and discussed emphatically. In the part of relating the element of competence, the confinement relationship viewpoint, special relationship viewpoint, identification and status, and the non-confinement relationship viewpoint are introduced. By comparing all of above opinions, the viewpoint of this paper is introduced, namely, when the confinement relationship is not existed between the actor and the other national staff, but the possibility that actor seek benefits for the other national staff by his power in recent or in future exist, then the act can be regarded as meeting the regulation of the element of competence in the mediating bribery crime. In the part of relating element of profit ,the main opinion of understanding improper benefits are introduced and discussed, then discuss whether the benefits of criminal constitution of the mediating bribery crime is necessary to define as improper. Through existing Penal Code article 388 stipulates:"seeking improper interests for other requester", cancelling restrictive regulation of defining the interest as impropriation is helpful to fighting crime. In the part of relating independence of crime, comparing Penal Code and amendment with Supplementary Provisions of criminal charge, and considering the character of this crime, this paper propose the mediating bribery crime should be identified as an independent criminal charge.The fifth part, according to the conclusion of the above various parts, the case is analyzed.