Study On Cancellation Of "Seeking Benefits For Others" In Bribery

Article 385 of the Criminal Law of China stipulates that Any State functionary who,by taking advantage of his position,extorts money or property from another person,or illegally accepts another person's money or property in return for securing benefits for the person shall be guilty of acceptance of bribes.According to this article,the crime of bribery can be divided into types extort bribery crime and accept bribery crime.The establishment of accepts bribery crime must have the element of"securing benefits for the person"(hereinafter "securing benefits" element).From the very beginning,there has been seen large controversy about positioning and applicating this "securing benefits" element both in the criminal law theory and the judicial practice,which has a direct impact on identification of the bribery.Recently,lots of new types of bribery has arisen in practice such as "accepting money afterwards" and "emotional investment",which constantly hitting the"securing benefits" element.These behaviors cannot be taken as crime of bribery if the judiciary authorities abide by the article of the Criminal Law strictly,because there is no typicality of securing benefits for the person can be found in these new behaviors,which seems to be suspected of indulgence to criminal offences.But if we want to implement the severe punishment of the anti-corruption policy of governing revolution for such behavior regulation in criminal law,and we want to regulate this kind of behavior at the same tine,it seems that we have the suspicion of indulgence to criminal offences.Although the Supreme People's court and the Supreme People's Procuratorate jointly issued the interpretation of several issues concerning the application of law in the handling of criminal cases of corruption and bribery in the year 2016,and Article 13 for the practice of outstanding problems on the "securing benefits" elements to make further detailed provisions,the author thinks that the judicial interpretation is only standing on the position of the pragmatic interpretation of "securing benefits" elements of expansion and even analogical interpretation.And there is a inclination of breakthrough in the legislative provisions,violating the principle of the principle of a legally prescribed punishment for a specified crime.Therefore,it is not the best way to solve the problem of bribery in practice.The reason why the existence of "securing benefits" let to a series of judicial identification problems is that the legislation of bribery itself has the defects of the confusion of the logic system and the vague expression of the elements.And the legislature has failed to solve these problems,and the interpretation didn't make a reasonable standard,thus led the theoretical controversy and practical difficulties exist till now.The author thinks that "Whoever started the trouble should end it",if we want to solve these problems,we need to call for the judiciary to develop relating policies positively,to cancel the elements of "securing benefits" as soon as possible,to amend the bribery legislation,so as to promote China's anti-corruption Prevention system construction.Thus we could promote a good social atmosphere that no body dare to rot and cannot rot.