On The Subject Of Corruption

Corruption crime is a kind of duty crime with the particularity for its subject. Thus, the legislation perfection on corruption crime focuses on how to correctly understand and define its subjects. The serial legislation evolution on subjects of corruption crimes in China not only shows the contradictions on cognition in theory, but also brings much confusion to judicial practice. At present, in the theory circle, the essential cognition on corruption crime is fixed as "being engaged in official affairs". Being both functional and administrative, the contents of "being engaged in official affairs" include the activities of leading, organizing, administrating and supervising etc on state official affairs or social public affairs with specific forms including pure state affairs, social public affairs involving state administration as well as operation and administration affairs of state-owned assets by state-owned firms and enterprise units.Viewing from correctly grasping essential features of subjects of corruption crimes, it analyzes the three situations of forming subjects of corruption crimes: On State Organs Personnel. The state organs personnel should have the legal identities as state personnel and be engaged in official affairs according to the law. The state organs include state authority, party and government organs, procuratorial organs, judicial organs, military organs as well as all-level organs of CPPCC, provincial and central organs of democratic parties. The state organs are sub-components of national organizations; the state organs personnel is recognized to be engaged in official affairs of state organs, and state personnel include those ones in state organs.On Quasi-State Organs Personnel. Firstly, it includes those personnel who are engaged in official affairs in state-owned firms, enterprises, public institutions and mass organizations. The state-owned corporations and enterprises are invested solely by the state with the property owned by the state completely and managed by the deputy who is designated by the state. Moreover, the economic aims are controlled or influenced by the state. The state public institutions are non-business organizations which are established by the state, financed by the national treasury and engaged in public benefit activities such as science, education, art and healthetc. the mass organizations are of state and enjoy the financial funds from the state. Secondly, it includes the personnel who are sent to the non-state-owned firms, enterprises, public institutions and social organizations by state organs, state-owned firms, enterprises, public institutions and engaged in official affairs. The dispatched personnel do not have to be state personnel. Thirdly, it includes other personnel who are engaged in official affairs according to the law such as deputies to NPC, people's assessors, people's procurator, members of village committee and neighborhood committee as well as those personnel in town grass roots who assists in the government and engaged in administrative tasks.On Special Subjects of Corruption Crimes. Firstly, it includes those personnel who are entrusted by state organs, state-owned firms, enterprises, public institutions and mass organizations to administrate and operate state-owned property. This kind of entrusting civil legal relationship requires that not only it should have the features of civil law but also the subjects which have the right of entrusting should be state organs, state-owned firms, enterprises, public institutions and mass organizations. Furthermore, the subjects have to be engaged in official affairs. Referring to the Judicial Interpretation by the Standing Committee of the National People's Congress Regarding the Application of the Subject of the Crime of Dereliction of Duty in Chapter IX of the Criminal Law of the People's Republic of China, the writer classify it as "other personnel engaged in official affairs according to the law". Secondly, it includes the personnel working in state-owned insurance companies. There is certain rationality to take them as subjects of corruption crimes.Through the discussion on essential features of the subjects of corruption crimes and the analysis on various subjects and by referring to provisions to define subjects of corruption crime as "public servants" in international conventions against corruption like the United Nations Convention against Corruption, the writer hereby proposes two approaches to modify the definition of subjects of corruption crimes. The first approach is to change to fixing public servants as subjects of corruption crimes; and the second approach is to purify subjects of corruption crimes, leaving only state public servants. Through comparison of legislation cost and techniques of above two approaches, the first one is favored, thus the term "state personnel" in Article 93 and Article 382 of the Criminal Lawshould be changed into "public servants, and the term "those engaged in official affairs" in Section 2 of Article 271 of the Criminal Law should be changed into "public servants". From long term point of view, the subject of duty aggressiveness crimes should be expanded besides the purification of subjects of corruption crimes, and the legal sentence for duty aggressiveness crimes should also be strengthened.