The United Nations Convention Against Corruption On The Influence To China's Criminal Legislation Of Bribery

The UN Convention against Corruption (hereinafter referred to as the Convention) is the first and the most comprehensive, creative international legal document with global influence for guidance of the international combat against corruption. It was ratified by the Standing Committee of the National People's Congress of P. R. China on 27 October, 2005, which cast far-reaching meaning for the legislation of criminal law of the bribery crime in China, because all the relevant laws and regulations that are inconsistent with the Convention shall be revised and amended so as to fulfill the duty of implementing the international convention. This thesis comparatively analyses the Convention and relevant contents of the Chinese criminal law concerning the bribery crime, and makes suggestions to the improvement of the pertinent Chinese legislations.This thesis is divided into four parts.Part I makes introduction to the international and domestic legislative progress concerning the punishing and preventing the corruptive crimes such as the bribery crime, etc. and induces therefrom the concepts and features of bribery crime ruled in those legislations.Based on the analysis of domestic theoretical study and judicial practices, part II compares and contrasts the substantive regulations of the bribery crime stipulated in the Convention and Chinese criminal law, which focuses on the four basic constitutive elements, the criminal liabilities and limitation period of prosecution of the bribery crime.Part III studies the procedural law concerning the establishment of preventive mechanism, the organs of executing the criminal law of bribery crime and the independence of the organs, the control of the judicial proceeding and international judicial cooperation. These are done by comparing the domestic legislative regulations with the relevant stipulations of the Convention and inducing therefrom the differences and similarities.Based on the above analysis, Part IV concludes that there is a big gap between the Chinese legislation concerning bribery crime and the Convention. Therefore, the author makes the following suggestions on improving the relevant Chinese legislations. In the area of substantive regulations, the scope of criminal subject should be enlarged; the constructive criminal intent should be clarified; the criminal object should be consolidated; the objective constitutive elements of the crime should be amended; the criminal liabilities should be reconstructed and the limitation period should be prolonged. In the area of procedural regulations, the preventive mechanism should be improved; the independence of the prosecutorial organizations should be guaranteed; and the following systems, such as the use of special investigative measures, the default judgment, the protection of witness, the exemption of the stained witness and the procedure of antecedent confiscation, should be established.In the end, the author drafts the purported amendments of the bribery crime regulations in Chinese criminal law, and raises the opinion that the Chinese Constitution should clarify the domestic effects of the Convention and the relationship between the international law and domestic law.