| As China has intensified efforts to crack down on bribery and other public officials to influence the rent-seeking has become a target seeking added that the bribe was artificially reduced the risk of taking bribes sometimes also with a buffer zone between the trustees, Thus, a simple mediator, fuzzy brokers, and other teams continue to act on the expansion. This not only cause tremendous harm to the fairness of a public official's position, but also seriously hurt the confidence of the public in the state, thereby affecting social harmony. In this social context, China joined the "United Nations Convention against Corruption" on December 10, 2003. The purpose was to further improve our work in the field of anti-corruption legislation. This paper is based on the new situation conform to the pioneering spirit of Article 388 of the "Criminal Law" relating to mediation bribery for a lot of new exploration. Through such an inquisitive, the author attempts to improve the legislation of China's criminal law relating to bribery of mediation to provide specific recommendations and the integration of the benchmarks identified in the administration of justice as the "United Nations Convention against Corruption" a benchmark.This paper is divided into three parts:Introduction--From the seriousness of the corruption issue in today's world, said the "United Nations Convention against Corruption", the good offices of the Criminal Law of China promulgated on bribery provisions of the new act, and the current status of the mediation bribery in the Criminal Code and understanding and meaning of the "United Nations Convention against Corruption", there is still a big gap. Thus, the combination of the "United Nations Convention against Corruption" to discuss the provisions of China's Criminal Law Legislation and judicial mediation bribery, it is necessary, and it is also the objective of this writing. In addition, analysis of the "United Nations Convention against Corruption", the significance of China's anti-corruption work, clear writing paper significance.Allocated to the legislative perfect about mediation bribery. The series is divided into three chapters: Chapter 1, the basic analysis of the crime of trading in influence in the "United Nations Convention against Corruption". There are both the similarities and differences in the composition characteristics between the crime of trading in influence in the "United Nations Convention against Corruption" and the criminal code provisions dealing with bribery in the mediation. To the "United Nations Convention against Corruption" as the basis for discussing the mediation of bribery in China's Criminal Law, it is necessary to the "United Nations Convention against Corruption" on the bribery of mediation provide a basic understanding of the offense. The main body of trading in influence crime, the influence of material transactions, the impact of performance and the interests of the affected four of the "United Nations Convention against Corruption" which is a basic analysis about trading in influence crime, laid the foundation for the comparison below. Chapter 2, dealing with the legislative differences between two behaviors. To further clarify the similarities and differences between them in order to better carry out perfect, to be a certain degree of comparison between the two. This chapter of the main elements that the main body, influence sources, the affected areas of these three objects, China's Criminal Law found that the bribery and trading in influence have the difference between transactions. Dividing the difference, summed up the commonalities between them. Their final conclusion is: China's criminal law provides mediation bribery is one of the manifestations of trading of influence crime in the "United Nations Convention against Corruption". In the types of behavior, mediation bribery is one of the types of trading in influence in the "United Nations Convention against Corruption". Chapter 3, improve our mediation bribery Legislation. From these comparisons, use of the existing criminal law provisions on bribery mediation has been unable to properly handle the "United Nations Convention against Corruption" said the influence trading. Therefore, as the crime of Wading in influence in the "United Nations Convention against Corruption" a benchmark, improve our mediation bribery has become inevitable. But how perfect is also worth considering further. In this chapter the author improve three areas from the main scope of the perfect, perfect description of the transaction, affect the scope of a comprehensive proposal, with a view to conform to the requirements of the "United Nations Convention against Corruption".Bribery mediation under judicial confirmtion analysis. The series is divided into four chapters: Chapter 1, Criminal mediation bribery in the position(overall grasp mediation bribery). In this chapter, the authors divided into three levels from the whole grasp mediation bribery: First analysis of the concept of mediation bribery. According to the main distinction between "mediation bribery" and "indirect bribery", the distinction between the two concepts clearly define the concept of mediation bribery; Secondly, clearly mediation bribery in the Criminal Law, "a separate crime" or "special form". Analysis of the criminal view of the current academic, the authors come to the conclusion: commentators supporting independent said the charges lack sufficient convincing reasons, the mediation of bribery can not be an independent crime in addition to the crime of bribes. Still a form of expression should deal with the crime of taking bribes, but the law itself may make two changes; Finally, through a case grasp the mediation bribery from nature of the transaction, that bribery has been able to classify as a crime of bribery, because it is both a "power" as the characteristics of the crime of dereliction of duty. This money, "interests" fungible, can be said to be a central feature of bribery crimes. Mediate bribery are no exception. Only by firmly grasping the real nature of the transaction mediation bribery case on the basis of the analysis we can reach the right conclusions. Chapter 2, understanding "to use my office or position and the conditions to facilitate" in mediation bribery. In this chapter, the authors first present from the point of view of criminal law scholars, combination of the "United Nations Convention against Corruption" influence trading on the "influence" of the bribery, "using the status of persons or facilities "to understand the meaning of our own. Then it is a distinction between the mediation bribes to "use my office or position and the favorable conditions" and the general bribery to "took advantage of his position". In ordinary bribery, "abused his power" refer to the work of the official relationship of checks and balances the interests of others. Such restrictions should include both direct and indirect restrictions. But the mediation bribes to "use my office or position and the favorable conditions" explained from the point of view of language, it should include position, but not limited to his job duties. Influence is not constrained by the nature of the relationship between the post and position of duty, such as the different departments of a superior-subordinate relationship, the same relationship that can be considered to pose terms or conditions of the facilities. Finally Author analyzed several cases in specific circumstances whether they amount to "use my office or position and the favorable conditions". Chapter 3, understanding "improper benefit" in mediation bribery. In this part, mainly on the three major issues: First, the "improper benefit" element of rationality lies, said that bribery mediation is consistent with the general nature of the bribes. We can not exclude from the scope of the criminal law against because they can reap the benefits of legitimate; Second, the "illegitimate interests" understanding of the meaning. On the question of what is "illegitimate interests", our current academic views have "narrow", "extensive" and "compromise" three perspectives. The writer basically endorsed the "compromise" position and specify the reason. Third, "seek" nature of the position. For the crime of taking bribes in general "seeking" nature of position, there are "Elements of the old objective", "subjective elements" and "Elements of the new objective" three views. Through analysis of mediation bribery and bribery in ordinary duties of general and special elements, we put forward our points of view about "seek" nature of the position in mediation bribery. Chapter 4, distinguishing the mediation bribery and the recommending bribery, the recommending bribery is essentially act as an intermediary. Mediation bribery have only a surface acts as an intermediary. Therefore, there is confusion, there is a necessary distinction. The authors analysis of the law and judicial practice started, the distinction between the two.In short, as a result of this research and analysis, we will sum up the gap between the mediate bribery and the "United Nations Convention against Corruption" which is trading in influence behavior from the macro, the revised proposal to conform with the requirements of the "United Nations Convention against Corruption"; From micro-hand the problems identified bribery mediation will be studied and disoassed. Based on the analysis of judicial practice in specific cases, further from the grasp of mediation bribes essentially, so detailed and thorough understanding of the Chinese Criminal Law provides mediation bribery. |
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