| Bribe-taking crime refers to a typical job-related crime characterized by abusing one’s power to seek personal gain committed by civil servants, which is a crime attracting much attention and is always emphasized by punishment based on Criminal Law. According to the current Criminal Law, seeking benefits for other people is deemed as an essential element of bribe-taking crimes. Although the essential element of seeking benefits was clearly defined by legislation, there are various different opinions about positioning of the essential element of seeking benefits in the theoretical and practical circles, based on which many views and theories are formed and arguments are continuing.In judicial practices, because of different understandings on essential elements by various regions and law enforcers, there are obvious differences in judicial operations by different regions and law enforcers, due to which selective justice becomes a commonly seen misunderstanding and judicial unity is thus affected. Crime of bribery tends to be more concealed, so it is difficult for prosecutors of job-related crimes to get sufficient evidences showing a bribe-taker seeking benefits for a briber, for which such investigations may come to a dead end and some criminals can’t be punished. In addition, there are intrinsic requirements in essential elements, so situation of briberies involving investment in human relationships is getting increasingly severe and the general public has a decreasing degree of awareness about the circumstance that officials seek legitimate interests for the entrusting party after taking a bribe, which restrict the process of building incorrupt governments in China to a large extent.Because of the abovementioned theoretical and practical issues, it is especially important to have a reasonable positioning of the essential element of seeking benefits and solve and mitigate theoretical and practical difficulties caused by these issues. In this paper, questions about reservation of essential elements are raised, and it is believed that neither improvement of investigation method nor theoretical interpretation of essential elements can solve those problems fundamentally. Solution for such problems must proceed from the root, which can only be realized through re-examination on criminal legislation for bribe-taking crime and cancellation of the essential element of seeking benefits in bribe-taking crime.As for structure of this paper, its main text comprises of introduction, conclusion and the following sections: The first section includes analysis and elaboration of connotation and evolution of essential elements after founding of the People’s Republic of China. In the second section, different theories about positioning of essential elements in evaluation theories will be discussed and evaluated, based on which various defects in reservation theory are put forward and the argument of cancellation theory advocated in this paper is put forward. Proceeding from practical issues generated by existence of essential elements such as overflow of briberies involving investment in human relationships and difficulty in criminal proof, the third section demonstrates the necessity of cancelling essential elements. In the fourth section, from perspectives of the essence of bribe-taking crime, ancient and modern legislations in China and other countries and so on, the feasibility of argument is put forward and conclusion is supported and proved in this section. In the fifth section, a suggestion on improvement of legislation is put forward from the perspective of cancellation of essential elements, which indicates that condemnation of bribe-taking crime shouldn’t be restricted by the essential element of seeking benefits and the behavior of seeking benefits for other people should be deemed as a reference for circumstances of sentencing. In addition, it is pointed out that attention should be paid to distinction in practices after cancellation of essential elements. |
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