Analysis Of The Difference Between Bribes And Gifts

Accepting bribes share extreme similarities with gifts given in social relationships inlight of external manifestations. Nevertheless, as far as the normative meaning of criminal lawis concerned, it does challenge distinctions between crime or not. What is worse, for thejudicial practice’s view how to effectively distinguish between bribes and gifts has become asubstantive judicial problem encountered by practice departments. It is well-established thatextraterritorial legislation generally adopts a lower threshold for conviction, a more rigorousset of legal system and an echelon of penalty measures, which substantially provide a legalfoundation for discouragement of bribery crime and achievement of balance between crimeand punishment. At present, the Chinese criminal law is mainly to inspect relationshipsbetween bribes and gifts from the perspective of experience while theoretical research isrelatively insufficient. Therefore, further systematic analysis as well as discussion betweenbribes and gifts probably contributes to clarifying different applicable criteria based ondifferent requirements, which in effect promote the implementation of the Criminal Law andthus enhance the progress of combating corruption crimes.Based on the aforementioned, through a summary of different views in respective ofbribery of emotional investment and bribery without prior agreement, this paper deals withcontroversy between bribes and gifts to which is related. Then it analyzes and reflects criteriadistinguishment referred to two judicial interpretative documents forwarded by theSupreme People’s Court and the Supreme People’s Procuratorate and providesunreasonableness thereof. Next it primarily focuses on discussion of deficiencies of one of thecriteria distinguishment connected to "whether to seek benefits for others", and gets to theconclusion that the essence of bribery lies in the impossibility of consuming state authorityand that "whether to seek benefits for others" is insufficient to distinguish bribes and gifts.Finally, this paper proposes two criteria to distinguish between bribes and gifts, i.e. relevanceof acceptance and employment of one’s position and consideration of acceptance and dutybehavior.This paper is composed of five parts:Part one describes principal types concerning qualitative dispute of bribes and gifts. Itdefines and elaborates disputes as of bribery of emotional investment and bribery without prior agreement in judicial practice and strives to propose difficult distinction between briberyand gifts by summarizing the controversy.Part two outlines analysis and reflection of boundaries as of bribery and gifts byreference to judicial interpretation. First and foremost, it analyzes the rationality of thejudicial interpretation when it comes to social and judicial effect. Then much more focus is onimperfection of the judicial interpretation, involving a single standard which is incapable ofbeing a determinative factor because of failure to distinguish bribes and gifts, and a possibilityof different criteria which might conflict or offset among thereof in spite of all possible anglestaken into considerationPart three holds that "whether to seek benefits for others” is not enough to distinguishbetween bribes and gifts. It argues that it is impossible to consume state authority which is theessence of bribery, and that based on this point it discusses the conclusion that "whether forthe benefit of others" which is regarded as distinction between boundaries of bribes and giftsis incomplete.Part four concentrates on one of the criteria in relation to distinguish between bribes andgifts, that is, relevance of acceptance and employment of one’s position. It presents the firstcriterion of distinction between bribes and gifts in accordance with three respects: causality ofsubjectiveness and objectiveness and causality between themselves from the judicialpractice’s standpoint.Part five explores the second criterion connecting distinguishment between bribes andgifts, i.e. consideration of acceptance and duty behavior. It provides two differentcircumstances as of consideration between acceptance and embodied duty behavior or abstractduty behavior and considers them as the second distinction criterion towards bribes and gifts.