Research On Penalty To The Crime Of Corruption

The crime of corruption, is refers to the crime behavior which the State staff and the person who is entrusted management and operation of state-owned property by the state organs, state-owned companies, enterprises, institutions, mass organizations, make use of his office for embezzlement, theft, fraud or other means of illegal to possession of public property. Corruption is the most common type of criminal, China has always attached how important of the legislative and judicial punishment to the corruption. In recent years, the amount of the corruption crime is very high and serious cases continuing to occur even if the country put a lot of resources to control it, this situation shows the crime coming out because of increasing our efforts to combat corruption, on the other hand it also shows that corruption is still not be effective treated. The reason for the causes of corruption are varied, the author can not be discussed in detail because of limit capacity, but, whatever caused the corruption, when is convicted, it will inevitably lead to legal punishment, so the research of punishment to Corruption Crime is a meaningful thing.The setting of punishment to corruption in throughout crime law is still a lack of research although mostly research concentrated in the composition of corruption, but noted earlier, legal punishment of the study is quite interesting things, Therefore, the author is selected on the basis of such a corrupt group of legal punishment to write, want to contribute to the overall framework of our anti-corruption efforts, hoping to draw our text for the contract side on this issue seriously.The question which will study in foreword partial this article has carried on the localization, it is merely in the counter-embezzlement systems engineering a small branch. In the outline part, inspected the history which in our country present criminal law the crime of corruption punishment method forms, is mainly the criminal law三百八十三rd stipulation historical evolution, stresses inspection which inherits in the law, and has discovered a phenomenon: Namely the crime of corruption legal punishment establishes each certain time (period because is not very long) the general meeting does not adapt the economical development or the policy change revises. Is the legislative technology question, the social situation change is too big, the criminal law cannot adapt society's change? Had such question, author to carry on the inspection to some legal system more developed mainland legal system country to the crime of corruption legal punishment establishment legislation; Then (crime of corruption legal punishment establishment) has carried on the criticalness explanation to criminal law三百八十三rd, involves specifically to the principal penalty, the accessory punishment and the non-penalty punishes the method as well as determines guilt the discretion of punishment to the crime of corruption to have the substantive influence two questions: The amount and the plot, in the union crime of corruption behavior characteristic's foundation, carried on to these questions commented on one by one, and proposed own viewpoint:First, definitely in crime of corruption severe sentence and so on death penalty and life imprisonment being suitable, but must reduce the suitable scope, uses it carefully. Already basically constructed the complete counter-embezzlement and corruption mechanism developed country with the entire country to be different, our country to the embezzlement punishment and the prevention main dependence's criminal law's stipulation, penalty's sentencing, severe sentences and so on death penalty and life imprisonment has the superiority which on the resistance corruption extreme serious perpetrator ratio other any way cannot hope to attain. And, it also has the big deterrent force in the behavior general prevention. But, the severe sentence must use carefully, just now can display its biggest effect, otherwise the severe sentence was in flood has also lost its general prevention function.Second, in the limited free punishment's establishment, must reduce the prison term to decide after deliberation the scope, the present criminal law stipulation's four scale's prison term amplitude adjustments to be soon more, cause the spatial reduction which in each scale may supply to decide after deliberation freely. Gives such suggestion, is worries in the current entire legal environment, judicial officials' accomplishment has not had the establishment so wide space for to make the choice, will often have the phenomenon which the same crime will punish differently.Third, the light punishment thought's influence, and unifies the crime of corruption behavior's characteristic, I put forward such three aspect proposal: The expansion imprisons the punishment the applicable scope; The addition control punishment, controls replaces the administrative sanction; Addition fine punishment, by fine substitution seize property. The reason that the expansion imprisons the punishment, the addition control punishment, is because imprisons the punishment and the control punishment has the good punishment effect to the light crime of corruption, and carries out conveniently, saves the judicial resources. The addition fine punishment, is because the fine punishment's utilization has the seize property effectiveness, moreover can make up the stolen goods to retrieve system's insufficiency effectively.Fourth, changes present determines guilt the discretion of punishment basic point by the concrete amount achievement, changes the elastic amount. In the article, I have analyzed in the present criminal law legislation technology existence such shortcoming, namely many economy class crimes when divides the crime weight by a concrete amount take the basic point frequently. This has created each certain age limit, originally the establishment concrete amount represents behavior malignancy after certain age limit has lost the significance. In the crime of corruption is also so, if in 1997 time criminal law promulgation 100,000 Yuan institutes represent the behavior hazardous nature had already lost its proper value in today, if also by 100,000 Yuan achievement heaviest penalty scale establishment standard, then causes the penalty falls into"strict severe"the condition inevitably. The determining guilt amount is also so, simultaneously when the determination determining guilt amount certainly wants the paraphrase neighbor the crime to be punished the amount to make the synthesis the consideration, otherwise not only will leave behind the pretext for the crime of corruption critique, also will form the imbalanced phenomenon in penalty's establishment. Therefore, I proposed determines guilt the discretion of punishment basic point position by the elastic amount achievement. The elastic amount, namely does not establish a concrete concrete amount, but is establishes a definite amount the method. No matter the economic development how, the currency purchasing power how does change, according to by determined that the behavior hazardous size the standard will not change, like this will establish the penalty will only then have the stability.Fifth, addition qualifications punishment. The crime of corruption prerequisite is the author has certain qualifications, enjoys certain civil rights strength, has such qualifications and the convenience condition can carry on to the public property embezzles, steals, swindles or other unlawful means carries on wrongful possession. This qualifications' acquisition is based on two request relations: First, the national maintains the individual right request for the country the national order; second, the country exercises the authority request for the public officials. The latter kind of request relations are the public officials obtain the civil rights strength the pretage foundation. In these two request relations, the faith is the most core energetic value. Once the civil rights strength is broken the trustee by the behavior this kind of faith relations (for example corruption), then the request relations must permanent relieving, be able to guarantee the first kind of request relations like the stability, thus guarantee country order stability. Therefore after the crime of corruption was established, the crime of corruption main body then broke the country by own behavior the exercise of power request which carried on to it, the faith relations has not existed, between the two established this kind of request relations here possible then permanent vanishing, also the manner never could in the taking the post of public service, not be able immediately to exercise any civil rights strength on behalf of the country. Therefore, establishes the qualifications punishment in the criminal law, stipulated explicitly the author once committed the crime of corruption, lifelong do not enjoy again exercises the civil rights strength qualifications.In this paper, two ideas pass through the full text; first, Professor Chu Huaizhi proposes"strict but not severe"the criminal idea; first, light punishment thought. Is precisely based on these two ideas, has carried on systematic ponder to the crime of corruption legal punishment establishment, only then proposed the above viewpoint. The language is superficial, frequently the words do not convey the thought that but hoped that can contributes own one's pygmy effort for China's criminal legislation and the counter-embezzlement project.