A Study On Element Of "Seeking Interests For Others" In Bribery Crime

In recent years, the corruption phenomenon is increasingly severe, which notonly damages the image of the party and the nation, but also hurts the interests of thestate and people, therefore, it is necessary to punish corruption harshly and fightagainst the act of accepting bribes so as to build a harmonious society. In accordancewith the provisions of the current criminal law, the common bribery crime can bedivided into “demanding” bribes and “accepting” bribes and the element of “seekinginterests for others” is only regulated in the “accepting” bribes. There are differentunderstandings and views on whether the element belongs to subjective element orobjective element and on its function for the conviction of bribery crime; besides, thelegal provisions are chaotic, leading to the bigger operative difficulty of juridicalpractice.The study is started from the legislative status of such element and it is obtainedthrough analysis that the application of such element has gone through element phaseand non-element phase; during the element phase, the “seeking interests for others” isonly a constitutive requirement of “accepting” bribery crime. After analyzing thecriminal laws and norms of criminal laws in the majority of foreign countries, it isfound that “seeking interests for others” is not defined as the constitutive requirementof bribery crime in most countries. On this basis, the meaning of “seeking interestsfor others” is analyzed deeply; the core word of “seeking interests for others” is“seeking” and the word of “for” should be understood as “giving” and the wholephrase represents a behavior. The interest can be divided into legitimate interest andunjustified interest and the interest should be unjustified interest only in the crime ofmediatory-bribe.In this thesis, the academic views on such element are concluded and analyzedafter introducing the element of “seeking interests for others”, including “the view ofabolishment” and “reserving theory” which can be divided into old objective elementtheory, subjective element theory and new objective element theory. The “old objective element theory” thinks that only the national staff’s illegal acceptance ofothers’ property can not constitute a bribery crime. In the “subjective element theory”,“seeking interests for others” is included in the category of subjective element and itthinks that the bribery crime is constituted if the doer of “seeking interests for others”has the subjective intention to seek interests for others. The “new objective elementtheory” insists on the objective attribute of “seeking interests for others” and thinksthat the bribery crime is constituted if the doer offers a “promise” of “seekinginterests for others”. Certain flaws exist in all of the three opinions which can notmeet the development requirements. The “view of abolishment” suggests eliminatingsuch element when revising the criminal law. If the element of “seeking interests forothers” is eliminated, the punishment on corrupt officials can be enhanced, thestriking scope of bribery crime can be extended and the legal provisions on briberycrime can be intensified so that it can be operable and the burden of judicial officecan be reduced, the judicial resource can be saved, the case handling efficiency can beimproved and the distinguish standard between the completed and attempted briberycrime can be defined.The abolishment of interest element conforms to the protection of legal interestsof bribery crime that is the essence of job probity and the internal unity andestablishment of legal provisions become more reasonable and unified. For theinternational anti-corruption tendency, the United Nations Convention againstCorruption tends to reduce the criminal elements of bribery crime; for the legislationof the incorruptible countries, only few countries defines interest element and thestandard for the criminalization of bribery crime is low. Hence, it is an irresistibletrend for the legislation change of bribery crime to abolish the element of “seekinginterests for others”. After such element is abolished, accepting bribes and giftsshould be distinguished and the nature determination on this offense and that offenseshould be differentiated, in particular, special attention should be paid to theaccusation whose constitutive elements of crime are similar. The nature of thebehavior of “seeking interests for others” can be determined in accordance with the treatment on sentencing of bribery crime and a difference should be made betweenaccepting bribes while bending the law and accepting bribes without bending the lawin order to guarantee the rationality and scientificity of bribery crime establishment.