On The Influence Of Determination And Legislative Perfection Of Crime Of Bribery

Bribery by means of influence is our country's actual performance of United Nations Convention against Corruption and the need of adapting to the complex struggle against corruption. However, there are just several cases in which criminals are convicted of this kind of bribery after the declaration and implementation of the crime, which is against the goal of enacting the law and reducing bribery. Therefore, the article starts from the domestic and international background of enacting the law on this crime. Four constitutes of the crime are analyzed comprehensively. The flaw of the law is proposed and the clauses are perfected from the perspective of practice.1. In the regulation on the object of crime, close relatives and people of close relationship can be regulated explicitly. If the regulation scope of the criminal procedure law is too narrow, it dose not conform to Chinese traditional habit of identifying close relatives. The concept of closely-related people includes both the Specific related party regulated in the original law and people around government officials. But whether these people have close relationship with the government officials can not be confirmed but their identities and the nature of the relationship should be researched. Due to the implicit definition of the present law, many people escape the investigation of law because the subjects are not people of close relationship.2. Through the interpretation of the concept of the influence, whether influential people and government officials are of common intention is stated clearly. Different conclusions of convicting crimes or not will be drawn according to the present law, which leads to the injustice. Therefore, the author holds that reasonable regulations should be enacted on the above two behaviors.3. The legitimacy of the interest decides whether the criminals are guilty or not. But in reality, there is much phenomenon in which legitimate interest is abstained but the property is given. This behavior does harm to the credibility of the government and the honesty of public service personnel but it can not be punished.4. There is no regulation on behaviors of bribing illegal interest to closely-related people. If public service personnel take bribe by means of influence, they will be convicted of crimes. But for people who are not public service personnel, there is no such regulation. This is not only against the law theory that all criminals should be punished but also can not reach the goal of preventing crimes.5. The unit crime must have clearly stated criminal law regulation. There is no regulation that the unit will be convicted of crime, which excludes companies which take advantage of influence to take bribe. Therefore, many companies which violated the law can not be punished.6. This crime adopts two criteria: The amount of the accepted property and the seriousness of the crime, which is more scientific compared with the precious single amount criteria. But it dose not offer corresponding judicial explanation, which causes the implementation difference of different regions. Therefore, for the amount criteria, the same amount of bribery will cause different level of damage considering different features such as vast land, different development level of economy. The punishment should be conducted according to the average salary of the local employees, which makes the punishment conform to the regional characteristics. For the seriousness criteria, the identity of the bribe, the means of bribery, the times of bribery and the damage caused to the society should be taken into consideration.7. There is no clear regulation on whether the government officials should be punished if they abuse their power. For the government officials who abuse their power or who are derelict, they can be convicted of power abusing or derelict. But if the government officials handle the cases with normal authority behaviors and do not know the actor's bribe behavior, those behaviors of government officials do not constitute crime although it causes the fact that others get illegal interest. But the actor will be convicted of bribe crime by means of influence. It also causes the phenomenon that some greedy officials escape punishment with the loophole. Therefore, help behaviors of government officials without collusion will be regarded as power abusing and negligence of duty according to the amount of damage and the degree of seriousness.By comparing the regulations in China with United Nations Convention against Corruption and regulations in France and Spain, the article proposes learning their advanced concept that both bribe parties should be punished. Besides, on the aspect of illegal interest, Chinese regulations on illegal interest are too narrow compared with those in Singapore and Bulgaria. The foreign regulations are of great practical significance and the clause should be restated as seeking for interest.Finally, the author restates the classes and judicial interpretation, making the existing legal system defects regulated reasonably.