Research On Transactional Bribery Crime

Transactional bribery crime is a form of bribery crime in the new period. There is always controversy between theory and practice in the definition of transactional bribery crime. In 2007, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued <several suggestions about law application to the new forms of bribery><"SNFB">, has articulated that the transactional bribery is a kind of bribery crime. The opinions minimized the ambiguity of Criminal Law provisions of bribery crime and prevented misinterpretation in judicial practice. Before the \"opinions\" coming into power, transactional briberies were rarely treaded as criminal crime. Few criminal sentences scattered around the country with no judging continuity. In order to better implement the SNFB, the author formed own opinions and commented on the controversy based on case study and own experience. This article preliminarily analyzed transactional bribery crime into three parts:the characteristic; the structural type and nature; the definition and criteria that triggered judicial recognition.The first part analyzed the characteristics of transactional bribery crime in the new period. It unveiled that the criminal subjects vary and the means of transactional bribery are increasingly concealed. Even normal market trading could be used as a covering for bribery. These characteristics of bribery are referred as New-type Crime of Bribe Taking. In response to the New-type Crime of Bribe Taking, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the SNFB to empower judiciary, consequently, enhance law enforcement.The second part demonstrated that transactional bribery also belongs to bribery crime, as it covers up the essence of \"trade power"\ with the feint of market transaction. Due to the existences of ambiguity between transactional bribery and the legal transaction in market economy, judicial office should clarify the case facts, distinguish between the real market trading behavior and transactional bribery and sequentially make a definitive conviction on the basis of strictly grasp the essence \"trade power"\of bribery crime in the process of recognizing the nature of such cases. The author illustrated the structural types of the transactional bribery crime, namely purchasing lower than arm’s length, selling higher than arm’s length and other types. Further analysis was conducted to portrait the parties involved and the major elements constituted bribery crime. Focusing on subjectivity, arm’s length principle, Criminal Law determinations and other elements, the author tried to give definition to transactional bribery crime and fair value market transactions.The third part expounded that in order to protect the normal trading order of the market by avoiding blindly expand the breadth of bribery crime, the Supreme People’s Court and the Supreme People’s Procuratorate stipulated in the SNFB that "purchasing merchandises with preferential price according to all kinds of preferential terms which was set in advance by commodity operator does not belong to bribery crime." The author firstly distinguished the transactional bribery crime transactions from preferential price in ordinary transactions. In addition, the author analyzed the \"clear"\ criteria defined in the SNFB. At the end of the third part, the author gave his own opinions and recommendations based on theoretical interpretation and his experience in dealing with transactional bribery crime.