On The Bribery Crime By Influence

The seventh session of the 11th National People's Congress standing committee passed the amendments to the criminal law of the People's Republic of ChinaⅦon February,28th,2009. The thirteenth article of the amendments ruled that, from then on, the fact that accepts bribes by utilizing their influence should be regarded as the crime that is embodied in the 388th article of the criminal law. The coming out of the law about this crime conforms to the need of anti-corruption work in new era, reflects the determination of anti-corruption, improves the laws involving bribes system and helps to solve some difficult problems in carrying out the laws about bribes. Meanwhile, the amendments to the law conform to the spirit to fight against corruption of Anti-corruption Convention of UN. It is both meaningful abroad and at home to carry out the Convention and make use of advanced concepts of legislation to challenge corruption. However, many controversial issues about the elements that consist of this crime exist in practical cases. Just as some scholars argued that interpretation of the criminal law should have justice in mind, but the eyes should linger between criterions and facts. This study takes example by the research results of the former experts, probes into the purposes of legislation deeply on the basis of the existing laws, in order to clear the elements of this crime up.The main body of the thesis is mainly divided into five parts.The first part discusses about the legal interests that the bribery crime invades. The study introduces the group of bribery crimes briefly, and then lists the theoretical argumentations on this topic to comment and probe into them respectively. According to the essence of the business of money and power between people who bribes and who offers bribes, the study reveals the fact that the crime of bribery utilizing force is a kind of crime on purpose. After the comparison above, the thesis combines the issues talked about above together, in order to obtain the conclusion that what this case invades is the feature of purity of national public servant, which includes at least two aspects:their powers of office can not be influenced and their powers of office can not be traded. The second part analyzes the objective components of this crime. On the basis of clearing specific articles of related laws up, taking the system of the group of bribery crimes into consideration, the writer talks on this topic from the aspects of common elements, peculiar elements and quantity as well as levels of cases. From the aspect of common elements, the study elaborates the objects and properties in the specific case. From the aspect of peculiar elements, the study highlights the topic how to utilize the forces for officials. The force here is divided to their own force and others'force in detail. From the aspect of quantity and levels of cases, the study explicates the specific functions of quantity in them and the levels of them.The third part is the principle part of this crime. The controversial ideas about this topic are lasting since its birth. In this part, the writer continues to get to obtain the particularity of this crime and prove that the public servant can commit this crime by commenting and analyzing theoretical argumentation, and that this crime is different from other crimes in the aspects of subjects of crimes. As a conclusion, the writer defines the scopes of related closely people, relatives and people leaving their offices clearly.The fourth part discusses about the subjective aspects of this crime. In detail, the study elaborates the places of advantage of his position to gain undue benefits for the asking and entrusting in this crime. The writer thinks that it belongs to the category of subjective surpassing. Meanwhile, the "improper" here should be sentenced from the standpoint of people who ask to solve the bribe case.The fifth part is the study of accomplice formed by general and public servants. This part includes implementing the behavior of this crime and out of this crime. And then this thesis summarizes the basis and necessity of completing the mutual relationship of this crime.