Study On The Difficult Problems In Judicial Cognizance Of Bribery Crime

Bribery crime is a relatively high incidence and typical duty crime, in the judicial practice because of the means of bribery crime continues to change, some parties to circumvent the law is often used in a variety of legal cloak to disguise and hide, to how to correctly apply the law to bring many difficulties. In this article, the author discusses the problems of the four aspects of the judicial identification of the crime of accepting bribes in the long term practice.First, for the identification of "taking advantage of post", the author thinks that "taking advantage of post" refers to the use of national staff within the scope of the duty convenience, and does not include the convenient conditions formed the original position; when the relationship between the State functionaries and other identity identity intertwined, unable to distinguish between primary and secondary, severity, and the results shows that both crime also has important causal relationship, should be identified; in judging whether the use of the national staff taking advantage of his position, should also pay attention to the distinction between work and use convenience; in bribes case, although do not need to seek benefits for others but, the perpetrator must use his position to take bribes, this should be a substantive judgment.Second, for "for others to reap the benefits" for the identification, I agree with the judicial interpretation take the subjective elements of said, but because of the judicial interpretation and the requirement to qingtuo matters should be specific and clear, leading to such as emotional investment in this case are often difficult to identify, this kind of limit it is not reasonable, investment properties in this kind of situation determines the ultimate goal is often bartering; bribery and kickbacks, the, although the law did not express to seek benefits for others, this can not understand this case of bribery does not need to seek benefits for others, otherwise it will not meet the bartering nature of the crime of bribery.The third, on bribery crime objective behavior of complex and diverse manifestations, an endless stream of new bribery. On the basis of the combination of bribery afterwards, CO investment type of bribery, accepting salary, such as bribery in practice should be how to identify the analysis, that the judicial interpretation is a note provisions, the judicial interpretation not specified or and judicial interpretation inconsistent, cannot entirely exclude outside the crime, should closely around the bribery crime of the essence of the bartering, appropriate and reasonable use of presumption, of these new variant form of bribes to a full investigation, conforms to the bartering characteristics of should be convicted.Fourth, the crime of accepting bribes is discussed. On the judicial interpretation provisions are ordinary crime more strict application and qualification objection, think in limiting criminal law applicable premise from the basic theory of accomplice to solve the complicity of bribery crime, otherwise the same case to a different conclusion, obviously unreasonable. This not only caused loopholes in the law, for the parties to evade legal responsibility to provide an opportunity, also obviously does not meet the current fight against corruption.