Theoretical Analysis And Judicial Determination On Crime Of Offering Bribes

The constitutive requirements of crime of offering bribes are defined generally,thus failing to meet the requirements on identifying crime of offering bribes in juridical practice.Through the analytical investigation from legal principles,the crime of offering bribes in juridical practice can be comprehended comprehensively,some references can be provided for accurately identifying crime of offering bribes and the crime of offering bribes can be suppressed and prevented effectively.This thesis is divided into 4 parts as the following:In part 1,it is about the definition of “seeking unjust benefit” in crime of offering bribes;in this part,the identification concept for “seeking unjust benefit” in crime of offering bribes is determined through defining the meaning of “seeking unjust benefit” in crime of offering bribes and clarifying the specific scope of “unjust benefit” and whether “seeking unjust benefit” should belong to the subjective requirement of crime of offering bribes is expounded and analyzed.In this part,the author comes to the following conclusions through comparative study: in the context of Chinese criminal legislation,“seeking unjust benefit” mainly includes two situations: firstly,the benefit content does not possess legitimacy,namely it violates the relevant laws,regulations and national policies;secondly,means for seeking benefit is illegitimate;although the benefit content confirms to the regulations in the relevant laws,regulations and policies with basic legitimacy,the doer adopts the illegal means that is forbidden by law in order to acquire the above-mentioned benefit;for example,the doer asks the state functionary to help him acquire the benefit through illegal means.“Illegitimate benefit” includes “unlawful benefit” and “other improper benefits”.Meanwhile,the identification concept for “seeking unjust benefit” in crime of offering bribes is clarified through the “demarcation between economic offering bribes and ordinary offering bribes”,“identification of offering bribes of ‘investment in human relationships' through money” and “identification of offering bribes without seeking unjust benefit”.Finally,the theoretical concept of over subjective factor is introduced to elucidate the subjective requirement of crime of offering bribes.In part 2,the bribery range of crime of offering bribes is expounded,which also includes the definition of “property” in crime of offering bribes,the defects of “property” identification in present criminal law and judicial interpretation,the new bribery forms appeared in judicial practice and the feasibility for criminalization of non-property interest bribery with the aim to make reasonable definition on concrete scope of bribery in crime of offering bribes.Through researches,it is found that the scope of “property” in crime of offering bribes should include not only the “property” regulated in traditional criminal law,but also the new “non-property interests” appearing along with social development.In part 3,it is unfolded surrounding the connotation of “giving” in crime of offering bribes,which mainly discusses the meaning of “giving” in crime of offering bribes,whether the behaviors of promising to give and appointing to give can be criminalized and the identification of abortive crime of offering bribes;through studying several theories,the abortive crime of offering bribes is identified through combining the theory of comprehensive constitutive elements of crime and regulations on attempted crime in general provisions of criminal law and finally,the identification standard for abortive crime of offering bribes is summarized into the following aspects: firstly,the briber performs the behavior of giving state functionary property or non-property interest;secondly,the state functionary does not accept the property or non-property interest given by the briber;thirdly,he rejects the property or non-property interest due to causes beyond volition of briber.As the last part,the author strives to discuss whether the crime of offering bribes and bribery crime can be punished equally through expounding the undesirable effect caused by criminal penalty discrepancy between crime of offering bribes and bribery crime and the feasibility for the equal punishment of crime of offering bribes and bribery crime.Finally,the author draws a conclusion: with a view to the large stock of corruption crimes and the limited judicial resources,the terse but forceful criminal law is more valuable than the well-rounded one.Due to the limited judicial resources and social reality,it is a wise choice to select terse but forceful criminal law which can effectively govern the existing corruption and bribery phenomena without leading to the situation that all the hypothetical well-rounded results can not be implemented effectively.Hence,on the logic premise of equal punishment of bribery crime,it may be an ideal choice to make the loose punishment on crime of offering bribes through criminal policies selectively so as to achieve criminal penalty's function of crime fighting and social prevention.