Research On Crime Of Offering Bribes To Influentials

In order to adapt the complex situation of corruption at home and meet theobligations confirmed by The United Nations Anti-corruption Convention feasibly,the Amendment (IX) to the Criminal Law of the People’s Republic of China adds acrime of offering bribes to influentials. Since the draft was published recently,theoretical research and practical experience of this crime remain to be improved,therefore, it is necessary to understand and study the applicability of the crime indepth. Apart from introduction and conclusion, this paper mainly consists of threeparts.The first part, an overview of the crime of offering bribes to influentials, mainlyanalyzes the accusation and legislative background, which is further elaborated interms of international regulations and domestic present needs. Moreover, the studyon accusation is identified by combining the debate among some scholars.The second part analyzes components of the crime of offering bribes toinfluentials. The first component is the behavior objects of the crime of offeringbribes to influentials, i.e. those around state functionaries. People who pay bribes tothose around state functionaries intend to benefit themselves by exploiting theinfluence of “those around” on state functionaries and taking advantage of theirfunction and power, thus damaging the fairness of their duties. Therefore, the objectsof this crime should be justness of state functionaries’ duties and public trust on it.The second component is the objective aspects of the crime of offering bribes toinfluentials explaining the act of perpetrating and behavior objects. Notably, thedescriptions of the crime made by the Draft Amendment (IX) to the Criminal Lawand Article389of the Criminal Law are quite different. According to the DraftAmendment (IX) to the Criminal Law,“in order to seek illegitimated benefits,people who bribe to close relatives of state functionarieson duty and/or left and whobribe to others who have close relationships with state functionaries on duty and/orleftare sentenced…” here the indication is no longer “granting properties”, showing that the definition of bribery is not confined to specified property or propertyinterests explained in former laws and regulations. The behavior objects of this crimeare divided into several specific groups, yet the understanding of ‘close relatives’,‘close relationships’ and ‘left’ can be ambiguous. Nevertheless, the identification ofbehavior objects makes a significant difference in determining whether or not thebriber is guilty and the accusation. For the purposes of avoiding unreasonablecrackdown on bribers and better implementation of the Criminal law, it is necessaryto define the behavior objects of this crime by taking into account legislativebackground and social realities.‘Close relatives’, one of the behavior objectsspecified in the crime, should be defined as what is described in Criminal ProcedureLaw. In this way, the regulation not only meets the principle of modesty in theCriminal Law, but also remains consistent with other laws. Instead of making it clearthe specific circumstances of ‘close relationships’, the crime is described vaguely as“others who have close relationships with state functionaries on duty and/or left…”,fitting well with the complicated social networks. In fact, the definition of ‘closerelationships’ should be limited to friends, schoolmates or others like “closerelatives” who act as representatives of state functionaries. The definition of “statefunctionaries who left” is relatively precise. As for the identification of its range, wewill discuss in this paper considering the Criminal Law and relevant regulations ofjudicial interpretation. The third componentis the subjects of the crime of offeringbribes to influential people. In accordance with the articles, the subjects of this crimeare natural persons who are at least16years old and who have the ability of takingcriminal responsibility without objection. However, there are no regulationsconcerning institutions offering bribes to those around state functionaries, which isprevalent in reality and needs to be identified under specific circumstances. Thefourth componentis the subjective aspects of the crime of offering bribes toinfluential people, mainly discussing criminal intent and criminal purpose of thiscrime. The form of sin, in this case, is criminal intent and can only be direct intention.In addition, another purpose is “to seek illegitimate benefits”.The third part aims to expound the identification of the crime of offering bribesto influential people, principally with emphasis on the identification of crime and non-crime issue as well as this crime and that crime issue. Firstly, the differencesbetween the crime of offering bribes to influential people and general cases of socialnetworking or gift-giving will be presented. Secondly, the definitions of the crime ofoffering bribes to influential people and the crime of bribery will be compared andanalyzed, aiming to lay the theoretical groundwork for the identification of them.Certainly, the differences between these two crimes can be obtained by comparingthe constitutive requirements, yet when identifying the nature of crime, we mustanalyze on a case-by-case basis and study these issues in view of various factors.Whereas some issues cannot be lumped together, otherwise this crime can be easilyjudged as that crime, resulting in confusion in judicial application. Thirdly, theattempted crime of offering bribes to influential people will be discussed on accountof its suspended pattern, further discussing the standards of identifying thisattempted crime.