| Bribery is a commonly seen occupational crime which has a great number of tough issues and complication in juristic determination. The act of whether "receiving property afterwards" constitute crime becomes focus of contention. From legislative consideration of Chapter 8 of Criminal Law, the nature of bribery means the power and money dealing among the litigating parties. Time sequence before or after the deal does not affect t composition of the crime. The complication and diversity of legal practice determines the constitution of any bribery crime shall have the prerequisite that strictly match the criminal fact and crime constitution. Different criminal facts rest upon different crime constitution. The accused of this case Wang is suspected of being involved in five crimes including corruption, bribery, misappropriation, privately keeps guns and ammunition and destroying accounting evidence etc. The first verdict from the People's Court ascertained that other crimes had existed but this crimes of corruption and bribery. In this case, the accused was sentenced to eight years imprisonment. After the first verdict was declared, the prosecution organ thought the part of the judgment which ascertained the accused innocent on the crime of bribery was wrong, they protested to the superior court in the procedure of the second instant. The final judgment from the second instant thought it is a equal and beneficial civil conduct for the accused to perform the housing contract concluded betweenhis workplace and the Land Administrative Bureau and not the kind of seeking interests by taking the advantage of his position. He did not have the subjective intent to take the bribe as an exchanging condition either at that time. When it was time to distribute the profit, the workplace of the accused recovered the receivable profit according to the 60% appointed for the distribution. The remaining profit shall belong to Yantai Huashen Co. and the accused was involved only with this part distribution, nothing to do with his occupational position in the Development Center of his workplace because the nature had no power and money dealing. Therefore, nothing improper to determine the conduct of the accused did not match the essential condition of bribery. In this case, the protest opinion shall not be adopted. The reasonable part from the accused and his advocate will be assumed. The judgment objected the protest and the original verdict is affirmed. It can be seen that the focusing contention is if there's money and power dealing existed and this type of afterwards dealing constitute crime. The author thinks bribery is a power and money dealing in nature. The sequence of public power and private interests does not affect the constitution of bribery. This case is different from common afterwards bribery, the reason of which is that the accused didn't seek any interests for Wang and Yiu of Huashen by taking the advantage of his position. To analyze the whole case, during the process of contractual performance, the accused didn't turn in this contract to Huashen as an exchanging condition. It was difficult to perform this power and money dealing even if he had this subjective intent. Therefore, even theafterwards bribery had happened, it does not meet the essential condition of bribery prescribed in the Criminal Law. So, the protest of the prosecution organ did not prevail. Being complicated, tough and frequently happened for the crime of bribery determines that we shall strictly adhere to the basic principle of governing the crime and punishment by law prescribed in the Criminal Law in the legal practice because this action is the process of using the law but mechanical one. For this, the jurist, particularly the lawyer, public prosecutor and judges have to work hard on the basic theory of Criminal Law in order to erect the right legal system for the criminal law application. The definition of Bribery which is prescribed in article 385 of Criminal Law means the stat... |
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