Study On The Criminal Subject Of Bribery

Corruption crimes, especially bribery, have always been the hot points of law. For effectively fight corruption and ensure state functionary perform their duty honestly, related criminal legislations are constantly adjusted and refined according to the developments and changes of society since the founding of New China. But in criminal theory and practical areas many controversial issues still need discussion, such as the criminal subject of corruption crimes. Bribery is the typical crime of identity, the actor must have special legal identity. In judicial practice, identifying the perpetrator is the prerequisite to decide whether his behavior constitute the bribery crime. In different historical periods and according to different legal ideology, it is different to define the criminal subject of bribery. At present, because of the political and economic reforms and the frequent interaction between institution and economic organizations, the nature of state functionary changes a lot from its traditional way, which keep the bribery's subject in a state of uncertainty. How to specifically define its scope is a very complex issue, no matter in criminal jurisdictional practice or in criminal legislative area. In such circumstances, after research on many different viewpoints, the author proposes her own views on the criminal subject of bribery.The first part is about the legislative evolution and identification standard of bribery's criminal subject. The first part summarizes the related provisions, regulations and judicial interpretations since the founding of China. In Chinese criminal legislative history, bribery crimes are once classified into the crime of corruption, and both crimes'subject are state functionary. But along with the legislative evolution, especially after the 1979 Penal Code amendment, their subject are defined in a slightly different way. For example, before the 1979 Penal Code, bribery, whose subject has the preliminary requirement of be a country staff, is one of the corruption crimes. In the 1979 Penal Code, bribery began to be an independent offence. While in the existing Penal Code, Article 93 SectionⅡprovides that the subject is state functionary which divided into the "state functionary" and the "preliminary state functionary". The author analyzes the nature of bribery in the legislative evolution, and put forward the identification standard of bribery's criminal subject which combines "identity" and" public affair ", and discusses the meaning and nature of "public affair" which refers to the state affair only. Public service, labor service and technical service are mutually integrated and penetrate. The conclusion is that "engaged in public affairs according to law" has six basic characteristics------public, management, will of State, power, mandatory and legitimacy.The second part discusses the four basic types of bribery. According to the Constitution and related legislation, state agencies are divided into five types:the organ of state power, the administrative organ, the military organ, the procuratorial organ and the judicial organ. The Communist Party's institution, the Political Consultative Conference's institution and various democratic parties do not belong to the state agencies. After analyzing whether the administrative enterprises, China's Securities Regulatory Commission Institutions, State Patent Office and so on, belong to state agencies, author redefines the definition of state functionary. Then author discusses the definition and type of state-owned unit, as well as the difference between state-owned company and state-owned enterprise, social group and people's organization. With analyzing the similarities and differences between "entrustment" and "assignment", the author summarizes the four characteristics of "assignment"-particularity, specificity, subordination and multiplicity. Finally, the author discusses whether the controversial subject of primary organizations in "the other subjects which conduct public affairs according to law" can constitute bribery.The third part focuses on a specific type of bribery which is perpetrated by retired state functionary. In this part, the author clarifies that "leave office" and "retire from duty" are two different concepts, and the concept "leave office" has a much extensive scope. Theorists have positive, negative and compromised views on whether retired state functionary can constitute bribery. Author starts with analyzing the constitutional elements of bribery and related legislative provisions, in favor of the compromised view. Author proposes that the "prior agreement" is the key point to decide whether retired state functionary can constitute bribery and explains in detail the specific time, mode and content of "prior agreement", and then raises the opinion that only in the situation of "prior agreement" and "constantly accept property after leaving office", can retired state functionary constitute bribery. If the retired state functionary conduct mediate bribery, in that way he constitutes a new crimes of exercising influence.The forth part discusses in detail the bribery's criminal subject, its "specific related person" and its "closely related person". Focus on the phenomenon of "specific related person" and "close related person" in many bribery crimes, author starts with defining the two legislative provisions and the connotation and denotation of "close relatives", "close related person" is defined by the degree of closeness which included state functionary, while "specific related person" is defined by the nature of relationship. Then after analyzes the legislative provisions and the criminal subject' identity, author draws a conclusion that "specific related person" and "close related person" cannot constitute the subject of bribery alone, they can only constitute the bribery's complicity. After detailed analysis of the different situations and elements which constitute bribery, author proposes that "conspire" is the key point for "specific related person" and state functionary constituting bribery. The property acquired by "conspire" or "common share" is the essence of crime that the " person without specific relationship" and the "close related person"(close relatives, mistresses and other specific related people excluded) constitute the bribery complicity.