| Our country has a renqing(human feeling) society. Giving and acceptance of gifts have always been traditional interpersonal communication means with a deep historic and cultural root. With the development of social economy, acceptance of gift money can not be simply taken as exchange of "renqing". It has become a disguise of acceptance of bribes, featuring obvious characteristics of crime of acceptance of bribes. In China’s current Criminal Law, article 385 states that: Any State functionary who, by taking advantage of his position, extorts money or property from another person, or illegally accepts another person’s money or property in return for securing benefits for the person shall be guilty of acceptance of bribes. Thus it shows that for the establishment of crime of acceptance of bribes, the subject shall not only accept another person’s money or property and but also secure benefits for the person. At present, article 385 is the direct legal basis for the punishment of crime of acceptance of bribes in China. However such a law is not effective in fighting against the corruption of accepting gift money. It is not enough to curb various corruption phenomenon of disguising bribes as gifts in current society.There are a large number of cases in judicial practice showing the necessity to add acceptance of gift money as crime. However, since the existing criminal law is inadequate on the regulation of acceptance of gift money, how to regulate acceptance of gift money becomes a difficulty in academic and practical circle. On one hand, a pure acceptance of gift money without securing benefits for others does not conform to the composition requirement of current crime of acceptance of bribes. On the other hand, some scholars have proposed to add acceptance of gift money as crime by itself. But this is very controversial due to the difficulties in legislation and judiciary. There is important practical significance to include acceptance of gift money as crime for the improvement of Criminal Law and anti-corruption campaign. In the cultural background of acceptance of gift money, the paper clarified the necessity to add acceptance of gift money as crime on the basis of reality of real-world cases and data. Through the analysis of the composition requirement of crime of acceptance of bribes and related theories, the author argued that acceptance of gift money should be included as crime of acceptance of bribes from a standpoint of infringement of legal right and it is one of the manifestations of acceptance of bribes. By studying domestic and foreign legislation precedents and China’s national situation, the author pointed out that acceptance of gift money shall not be separated and added as crime by itself, while the composition of securing benefits for others is ought be cancelled from crime of acceptance of bribes. In addition to the introduction and conclusion parts, there are four parts in the text as follows:The first part is an overview of acceptance of gift money. Combining with the cultural background of acceptance of gift money and judicial cases, the author intended to illustrate that although acceptance of gift money is part of the culture of “renqing” exchange, the increasing prevalent acceptance of gift money not only lost its original value, but also become new means of corruption crime. Since the existing laws and regulations are insufficient to curb this phenomenon effectively, there is sufficient necessity to include acceptance of gift money as crime. Thus it not only put deserved punishment upon corrupted ones, but also fills the gaps in existing laws, which has a great significance in anti-corruption efforts and the construction of rule of law.The second part is about the discussion on current legislation status quo of acceptance gift money at home and abroad. Through a comparative analysis between some foreign countries and our country regarding legislation on acceptance of gift money, it is concluded that related laws and regulations concerning accepting gift money are still in a relatively low legislative level. And from the experience of other countries, it shows that we need to increase the cost of breaking law and strengthen criminal liability, and develop a more detailed and strict laws in order to form an effective regulatory system for acceptance of gift money.The third part is about the discussion on the method of including acceptance of gift money as crime. There is a positive side of separating and including acceptance of gift money as crime by itself. At the same time, we should see its shortages like crime design and judicial determination. After a comprehensive analysis, the author thought that acceptance of gift money should not be added as crime separately. Instead of strenuous establishing crime of acceptance of gift money, we should actively close the existing legal loopholes.The fourth part includes the determination of acceptance of gift money and advice for legislative improvement. Regarding the concept of the crime of acceptance of bribes and its composition requirement, the author analyzed the similarities and differences between acceptance of bribes and gift money. And these two have no difference on behavior subject and subjective awareness. From the perspective of violations of legal right, acceptance of gift money should belong to crime of acceptance of bribes. Combining with the judicial practice, the author put forward recommendations on the improvement of article design of including acceptance of gift money as crime, and proposed to abolish the composition requirement of "securing for the benefit of others." in crime of acceptance of bribes. Thus this is not only beneficial for better legal right protection, but also in line with international anti-corruption legislation trend. Meanwhile, after the abolition of the composition requirement, the judicial determination of the behavior of acceptance of gift money should be correctly distinguished from normal “renqing” exchange, in order to prevent excessive expansion of the scope of crime of acceptance of bribes and other issues. |
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