Study On Crime Of Corporate Bribery Based On The Law And Economics

Along with the constantly deepening reform of socialist marketing economy in China,and under the background of prosperous economy and more stirring economic activities as well,corporate bribery crime,this term collectively refers to three crime facts according to the criminal law of China,is increasing gradually.Nevertheless,in the term of corporate bribery crime,there are still major controversies in the basic concepts,basic theory and the judicial practice,such as company(corporate in foreign law system,and mentioned in the domestic criminal theory as the part of conception of units)of the basis of the criminal responsibility in the crime,whether increasing the freedom penalty of natural person is the optimal solution with the problem of unbalanced punishment in “ severe towards bribe accepting but lenient towards bribe offering ”,and how to reasonably allocate crime punishment,etc.Therefore,this paper using the method of law and economics to reconsider the criminal responsibility between corporate and natural person in corporate bribery crime,analyzing the interrelationship and interaction among both parts of bribery crime.Then try to build punishment configuration scheme of corporate bribery crime from a new theoretical perspective.The first part,this paper based on the theory of enterprise ownership to analyze the texture and incentive problems of corporate bribery crime,clarifying the punish legitimacy of corporate bribery crime and the rationality on punish nature person after sentence blocking.Secondly,by using the principle and method of law and economics to reexamine the criminal responsibility of corporate bribe crime and its function.The second part,according to the statutory sentence and criminal cases collected from Lawyee of Peking University to analyze the circumstance " severe towards bribe accepting but lenient towards bribe offering ",and by the method of marginal utility to find out the punishment configuration of corporate bribery crime at present,and the intrinsic relationship between bribe accepting and bribe offering.Finally,according to the theory of supply and demand suggests that punish no matter on which side will increase same transaction costs on both sides.The third part,first of all,on the basis of rational choice behavior theory,this paper established the rational behavior model according to the corporate bribery crime characteristics,to analyze the criminal case in the judicial practice in China,which concluded that the punishment deterrence of corporate bribery crime at present is insufficiency and sentence arbitrary.In the final,conceiving the fine punishment method based on the upper limitation of penalty determined by retribution punishment,the special prevention decide on the declared sentence according to the illegal income as the main factor rather than the amount of bribes.The significance of this research is no longer eager to clarify the basic criminal theory of corporate crime,instead apply the utilitarian way of law and economics to find out reasons of corporate bribery crime,criminal responsibility and fine punishment,draw a concrete rather than abstract conclusion,as feedback of the criminal law theory and revise by criminal dogmatic.The research conclusion of this paper is aimed at the plight of corporate bribery crime criminal liability,insufficient deterrence and sentence arbitrary.Meanwhile,rebuild the punishment system of corporate bribery crime to achieve the research purposes,optimal deterrence namely.Specifically,first of all,according to the criminal case in China,summarized by monadic regressive analysis,establish the rational crime model compatible with the characteristics of corporate bribery crime.Combine with the theory,which the upper limitation of penalty determined by retribution punishment,the special prevention decide on the declared sentence to propose the reasonable allocation of corporate bribery crime fine punishment method.To replace the unlimited fines punishment standards to limited one,which according to the illegal income as the main factor rather than the amount of bribes.The result sentenced to fine punishment is divided into two situations: firstly,there has the illegal income to confiscate;Secondly,there is nothing to confiscate.The first kind of circumstance also can divided into two kinds: one is full amount illegal income to confiscate,which should sentence to only a small quantity of fine punishment just for eliminating recidivism possibility;another is left a part of the illegal income to confiscate,which should sentence the marginal amount of the fine according to the probability when crimes happened.In the second situation,the illegal income as the maximum amount of the fine must determined by the special prevention.In terms of the punishment to natural person,only should be sentenced to freedom penalty when encounter sentence blocking.It is just for eliminating the condition,which natural person have the chance to recidivism(For example,to confiscate the illegal incomes,and sentence to appropriate amount of fine and qualification penalty,even related security measures,etc.).