The Research Of Taking The Behavior Of Accepting Gifts Into Criminal Law

In recent years, national staff accepts property in the name of reciprocity, this situation emerges in endlessly. It is a kind of "emotional investment" bribery crime. The existing law does not have specific provisions to deal with the matter, resulting in the lack of effective unified response when encountered the relevant situation, loosely acting it as a normal human feelings, strictly as bribery, more than only as a discipline dealing with it. The same kind of behavior, there are different results, bring about different responsibility, it is not conducive to crime prevention, but also undermine the authority of law, and is not conducive to the realization of justice. In order to meet the demand of China’s current economic development and the punishment of bribery crime, criminal legislation of bribery requires constant development and improvement, and presents its own characteristics.In the occasion of the criminal law amendment(9) come up, whether to establish "the crime of accepting gifts" caused quite a stir, although the final draft did not absorb the new propose, accepting gifts sin has caused widespread attention and research. It would not only promote the arrival of "the crime of accepting gifts" provisions, but also can offer new ideas for anti-corruption.This paper intends to analysis the present situation that national staff accept gifts using their status, considering with the current legislation background, then suggest us should propose the introduction of "accepting gifts crimes" in the Criminal Code, in order to carry out such acts of legal regulation, and learn lessons from foreign successful practices about specification officials accepting property, then put forward the concept of accepting gifts crime in our country and the elements of crime design. Finally, this paper countermeasure against difficult problems bring by the establishment of the crime to regulate the behavior of state staff from property national act effectively.Specifically, this paper includes the following several parts:The first part presents situation and reasons of state functionary gifts behavior. Currently, due to the legal characterization of unknown, the lack of discipline deterrence, there are more and more invisible bribes, which are hard to governance.The second part is the theoretical debate on the establishment of the crime of accepting gifts. Some of them agreed to add this crime, while some are on the country, thinking that legislation explanation or changing bribes can solve this problem. I agree with the addition of the crime.The third part is about the comparative study of this crime, I select the perspective of ancient China’s Tang Dynasty, as to foreign country,such as Japan and South Korea, Singapore, the United States, Finland and so on,to study the way of regulating the behavior of accepting gifts legislation.The fourth part is the legislative Suggestions about our country to set up the crime of accepting gifts. Accepting gifts crime refers to the state personnel illegally accept other people’s property based on their identity with large amount, but did not use the functions and powers for the benefit of others. Furthermore this paper also analysis the constituent elements of crime—— object、objective、subject、subjective, and last propose some idea about criminal responsibility of the crime 。The fifth part is about the main problems of setting up the crime of accepting gifts. Mainly including the crime of judicial cognizance question, the cognizance of both guilty and not guilty but also the difference with related crime, the most important thing is how to distinguish reciprocity and simply accepting property. In addition, this paper also discusses how to conduct the corresponding rules and regulations, and the Suggestions for preventing state staff from accepting property illegally.