| Amendment Ⅶ to the Criminal Law of the People’s Republic of Chinaprescribes “using the influence of bribes” which stipulates any non-state functionarywho, by taking advantage of their influence, extorts money or property from anotherperson or illegally accepts another person’s money or property in return for securingbenefits for the person. This regulation fills the main scope of criminal law scholarshave been long-term exploring the crimes of accepting bribes and a new formalproblem of corruption punishable omissions which is caused by judicial practicebecause of legislative restrictions, and has a distinct characteristic of the times. Priorto this, the58th UN General Assembly considered The United Nations conventionagainst corruption（UNCAC）, article18of this convention stipulated influenced tradecrime. China joined the Convention in2005. In order to comply with the Convention,China’s article13of criminal amendment Ⅶ set the “using the influence of bribes”.The regulation strict the net of justice on the one hand, better able to define the crime,against bribery crime, meet the needs of social development, to safeguard the socialorder and stability of our country, on the other hand, to achieve the commitment forUNCAC, full exercise its function.The “using the influence of bribes” is a new charge, new charges introducedhave progressive meanings, in the statement of this have many vague and imperfect,and therefore how to correctly understand and grasp this new law, criminal lawscholars have different viewpoint. If we can further analysis on the basis of the issuesinvolved in comprehensive in-depth discussion and research, to get the attention ofthe legislative and judicial branches, and to guide judicial practice, there will certainlybe theoretical and practical significance.This article is divided into five parts:Chapter one provides the using influence of bribes’ overview. First, this paperexplores legislation motivation of the using influence of bribes and explains that the purpose of incrimination of the using influence of bribes is not only to make betterintegrate with The United Nations convention against corruption（UNCAC） but alsoto meet the realistic need in our country. Second, this paper analyses the usinginfluence of bribes’ legislative value. It makes the existing bribery crime in ourcountry had more strict law regulating. It also has important complementary role.Atthe same time, it also complies with the international trend in order to maintain theadvanced nature of the legislation.Chapter two rounds the object of the influence of taking bribes constitutes tolaunch discussion. I combine different views of the domestic criminal law scholars,and discuss through comparative analysis, and think that the object of the influence oftaking bribes is the behavior of national staff positions.Chapter three mainly focuses on the explanation of making use of influencedsubject of bribery. Firstly, I set forth the nature of crime of influence bribery subjectsdetailed and think that the subjects of this crime are general subjects. Secondly, thedefinition of “close relatives”,“close relevant person”,“special related person”,“leaving state personnel”, the similarities and differences between “close relevantperson” and “special related person”, other related problems are analyzed. Finally, theidentity competing regulatory issues of crime subjects are analyzed, considering thatstate functionaries can be the subjects of this sin.Chapter four begins discussion on the objective aspect of using the influence ofbribes. I explain this issue from several aspects such as using the influence to seekillegitimate interests for another person, extorting money or property from anotherperson or illegally accept another person’s money or property and having other severecircumstances. First, this chapter discusses the “influence” on the connotation. Itconsiders that the influence can be divided in non-power influence and powerinfluence from the content. By analyzing the behavior of the crime and comparisonwith the influence of The United Nations convention against corruption (UNCAC) toelaborate the concept of using the influence. Second, I discuss the illegitimateinterests. It thinks that the illegitimate interests mainly contain two types that areillegal interests and uncertain interests by using the illegitimate means. Discussing on“seek illegitimate interests for another person” from different sides such as position and appliance and considering it is the objective condition of using the influence ofbribes. Finally, this chapter briefly discusses related issue including solicit bribes,accepting, property, large amounts, heavier plot etc.Chapter five mainly carry on the discussion of some problems aboutinfluence-using bribery crime. Firstly, expound the problems about the definition ofinfluence-using bribery crime and other related crimes, analyses the boundaries ofthis crime, bribery and introducing bribery. The judicial determination problems onthe boundaries between crimes are analyzed combined with design case. Secondly,joint crime problems of influence-using bribery crime are discussed with thecombination of design case. Finally, expound on the Problems about crime patterns ofinfluence-using bribery crime. Namely accomplished standard problems ofinfluence-using bribery crime, consider that if national staff in this crime seekillegitimate interests for briber, the influence-using bribery crime is accomplished.The paper always focuses on service law practice, refers to the currenttheoretical results and controversy on the offense, uses comparative methods and themethods of the system to explain, as well as analyses by synthesis, and strives toinvestigate the crime constitute and other related issues from different angles and atdifferent levels, to provide a reference for future legislation. |
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