On The Crime Of Commercial Bribery And The Legislative Improvement

Since the Central Government started the campaign against commercial bribery in 2006, "Commercial Bribery Crime" has been a catch phrase both in the legal world and in our social life. However, the theorists and the practitioners differ in their interpretations of the crime.Commercial bribery dates back to the mid-19^th century when people came to realize its increasing harm. In general, it refers to the improper conduct of giving property or other benefits with a view to obtain business opportunity and the illegal conduct of misusing one's power to demand property or other benefits in commercial activities.Commercial bribery has experienced a process from being a common offense to being a crime, which modern civilized countries have all made legislations to stipulate and curb. The author of this paper holds that commercial bribery crime should refer to the criminally punishable commercial behavior of one unit or its staff taking from or giving to another unit or its staff property or benefits of the same kind in order to sell or purchase commodity, offer or obtain business opportunity, normally occurring between businesses and other units or between businesses, other units and government bodies. Commercial bribery as a crime has its special features manifested in the Subject, the Object, the subjective and the objective respects.The Criminal Law of China has not prescribed for Commercial Bribery Crime directly. Instead, it has prescribed for the bribery crime committed in official business and the bribery crime committed in economic dealings in Chapter Three and Chapter Eight respectively. With the development of the judiciary practice and the deepening of the theoretical research, Chinese legislation on commercial bribery has seen much improvement with The Sixth Amendment in Criminal Law and Suggestions on Applicable Laws for Criminal Cases Concerning Bribe Acceptance put into effect by the Supreme Court and the Supreme People's Procuratorate as clear proof.Deficiencies of Chinese legislation on Commercial Bribery lies in the narrow subject scope, the inequality between the Subject and the Object, the unitary description of bribery substance, i.e. property, and the defective additional penalties like the absence of the fine penalty and the dislocated qualification penalty.And the legislation on the criminal procedures for punishing commercial bribery is deficient in three ways: separate administering bodies, inadequate means of investigation and the lack of unblocked international judictory cooperation.On the technological level of legislation, there exists a disharmony between the legislative stipulation and judiciary practice—the provision about "financial dealings" being nominal. The legislative attitude is kind of severe towards bribe accepting but lenient towards bribe offering—criminal penalty for offering bribes and judiciary predicament. Then, there is the discrepancy between the criminal penalty establishment and public expectation, justice and the international tendency--deficient punishment deployment for the crime of commercial bribery.Chinese legislation on commercial bribery must use United Nations Convention Against Corruption as the chief source to perfect itself. Firstly, commercial bribery should be dealt with in an independent chapter, which is in conformity with the public understanding of the crime. Secondly, the objective circumstances of bribery crime needs to be redefined to make it in keeping with both people's general understanding of the crime and the developing judiciary practice. Thirdly, the criminal penalty system calls for revision and perfection: The death penalty should be abolished in favor of the property penalty and the qualification penalty to make the punishment truly fit the demand. Fourthly, criminal litigation, administrative legislation and economic legislation should synchronize with the criminal legislation so that commercial bribery can be curbed more effectively, and in particular, criminal litigation law should allow the procuratorate body to make investigations into and have jurisdiction over the crime uniformly, give it more freedom in using investigative means and perfect the legal procedures for pursuing and capturing the offenders who flee the country.