| Crime of corruption is very common in crimes committed by taking advantage of duty, and it becomes more and more complicated with the increasing development of economic reform in China. In judicial practice, there are many arguments on matters regardipg determination of its subject,objective conduct and object,as a result,many issues still remain unsettled. Therefore.it is necessarry to strengthen research of the crime. Combining some complicated issues, this pape, in accordance with current laws and judicial interpretation, intends to make a study of the issues in expectation that it contributes to judicial practice.The first part of the paper, by anaiysing the legislative evolution of the subject, further inhances and perfects theory of the subject, and analyses the connotations of "performing pubic service" and "assigned" "authorized" .It holds that "authorized" stipulated in the second paragraph of article 382 of the criminal law refers to civil entrust, not an administrative one.The second part, by analysing objective of aspects of crime,holds that 1.the intention of the post should be decided as administration and management . 2. taking advantage of one' s position and power conveniently refers to one uses his position and power of admintstratiry and managing public property under the convenient condition , and further more "use" here only refers to use it directly.3. "approprite" ,as one of patterns of corruption, belongs to "Act Commssion" ,namely, crime of corruption can be committed in form of Act Commission.The third part , by analysing relevant article of the law, holds that the objects of the crime include:public property,gifts that should be handed over to the state in activities of puiic service at home or abroad, or property consisting of pubic elements owned by mixed economic organizations. At the same time, by analysing "property" , it holds that contractual operation refers to "authorized" to administer and manage in the second paragraph of article 382of the criminal law, and only state-owned property can be the object of the crime, and with different contractual forms, the scopes of state-owned property are also different from each other. "land"cannot be the object directly, but"land right of use", as intangible property, can be the object ofthe crime.The fourth part, by analysing different ideas on accomplice of corruption,holds that accomplice and its nature shall be determined on the basis of "capacity" and in line with act in objective aspects. The opinion that "major criminals determine conviction of crime" , in interpretation of the Supreme People, Court on Matters Regarding Deteminaion of Joint Crimes in Trial of Corruption and official Embezzlement Cases(June27th2000) is in contradiction with criminal theories and not easy to handle injudicial practice-.The fifth part , by commenting on different viewpoints regarding criteria of Accomplished Crime and Criminal Attempt, holds that "acquire" shall be regarded as criterion of Accomplished Crime of Corruption, namely, if the suspect has already "acquired" public property, fulfilling criminal intent of illegal possession, then Crime of Corruption has been regarded as accomplished, otherwise,it can only be regarded as Criminal Attempt, the principal means of restructing of State-owned enterprises is turning former state-owned companies or enterprises into new Corp. Ltd. if previous state functionary, by taking advantage of his off ice, transfers a huge amount of state-owned property into operation of newly-founded Corp. Ltd.by means of concealment,he cannot be convicted as corruption for the sake of uncertainty of subjective intent and objective result of possission which are necessary constitutional elements of the crime, the new crime of "concealing state-owned assets" shall be stipulated in legilation for the purpose of enhancing protection of state-owned assets. |
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