Research On The Standard Of Conviction And Punishment Of Bribery Crime

During the period between the foundation of the People’s Republic of China and the implementation of criminal law in 1979,our country has adopted the “Determining Penalty by Counting Booties” punishment standard on bribery,attached to the crime of corruption.From the enforcement of criminal law in 1979 to the enforcement of criminal law in 1997,“the circumstances centered” punishment standard has been employed in bribery crime,and it enjoys independence in the law.Since the implementation of criminal law in 1997,the punishment standard applied in bribery crime has been “the amount centered,with consideration of the circumstances”,but also attached to the crime of corruption.In Amendment Ⅸ to the Criminal Law issued in 2015,it was changed into “general amount and circumstances”,still attached to the crime of corruption.From the perspective of the legislative evolution of the national standard of conviction and punishment of bribery crime,the amount of bribes is a necessary condition for the punishment of bribery crime and attached to the crime of corruption.Meanwhile,the transform from unary to binary standard is achieved.There are a lot of problems in the current standard of conviction and punishment of bribery crime.Firstly,the stipulation that bribery and corruption share the same standard of conviction and punishment can neither reflect that bribery crime is different from the crime of corruption,that bribery crime punishment highlights the role of the circumstances,and understand the social harmfulness of bribery crime correctly,nor fully embodies the punishment principle corresponding to the crime.At the same time,it increases the difficulty of criminal investigation.Secondly,regulating the standard of conviction and punishment of crime “based on the amount of crimes” not only fails to fully reveal the harmfulness of bribery,and is incapable of regulating bribery of non-property interests,but also is unable to accurately grasp the relationship between the amount and the circumstances.Finally,limiting the standard of conviction and punishment of bribery crime to “amount and circumstances” and attaching it to the crime of corruption goes against the purpose of criminal law,and is adverse to achieving the corruption punishment.Besides,it is not conducive to realize the punishment aim of crime prevention and educational function of punishment.So far,in terms of how to improve the bribery conviction and punishment standard,three theories have been raised,“amount and circumstances”,“the circumstances centered”,as well as “the amount centered,with consideration of the circumstances”.The theory “amount and circumstances” is more realistic,but fails to put the case of accepting or extorting non-property interests into the adjustment scope.The theory “the circumstances centered” is too radical to put into practice.While the last one,“the amount centered,with consideration the circumstances” is neither conducive to the update of criminal law legislation concept,nor conductive to achieving the anti-corruption purpose.Through inspecting the provisions of the extraterritorial criminal law on bribery,it is not difficult to find out that the standard of conviction and punishment of bribery crime is not only independent of the crime of corruption,but also has diversity and strong comprehensiveness.From China’s stance of criminal policy on bribery punishment,our criminal law needs to be mended with reference to the foreign standard of conviction and punishment of bribery.Hence,China’s criminal law should expand the scope of bribery object,set up independent conviction and punishment standard and the legal penalty,perfect the “amount and circumstances” dual elastic conviction and punishment standard,and adjust the amount of bribery.