Research On Judicial Determination Of Joint Crime Of Bribery And Matters Of Argument

The determination of the crime of joint bribery has certain disputes in the theoretical circle and how to correctly understand and determine the crime of joint bribery in the judicial practice is of great significance in the fight against the corruption.On the basis of the controversial focuses of the crime of joint bribery in the judicial practice and in combination with many theoretical views,this paper analyzes and demonstrates how to determine the crime of joint bribery in the judicial practice and proposes the author's opinions.Apart from the introduction,this paper is composed of three parts,about 25,000 words in total.In the first part,the paper briefly expounds the concept and characteristics of joint bribery crime.In the second part,the paper discusses the common recognition of the elements for joint bribery in judicial practice.Firstly,this part discusses the identification of the main elements and proposes that the non-government staff can commit crime of taking bribes from the perspective of identity crime and by combining with legislative history.Moreover,the paper also discusses that the non-government staff can be an accomplice in the crime of joint bribery from the four perspectives of criminal law theory,judicial practice,objective distinction,social effects.The second element is the object.This part mainly elaborates the common bribery crime is the violation of the complex object.The third aspect is the subjective identification of the crime of joint bribery.In this part,the paper elaborates the four requirements to grasp the subjective contact of the joint bribery crime,as well as manifestation mode for the meaning expression.Furthermore,some problems that should be paid attention to in the judicial practice for subjective meaning contact in identification of the crime of joint bribery are also put forward by using some judicial cases.Finally,it is about the identification of the objective behavior of the common bribery crime.In this part,it analyzes the solicitation behavior,taking actions and the assisting behavior in joint bribery crime.By reciting some relevant cases for discussion,the paper proposes that the joint bribery should be motivated by the intentional subjective attitude whilethe negligence does not constitute a solicitation.The crime of complicity is determined by referring to the effectiveness of assisting behavior.In the third part,the expression forms of joint bribery crime are discussed.Firstly,it comes to the identification of the common bribery of the governmental staff.This part expounds the two elements of the common bribery crime of governmental staff through the analysis of the different points of view of the relevant cases in judicial practice.Secondly,the paper discusses the identification of the joint bribery crime of non-governmental staff and governmental staff.In this part,the scope of “specifically related person” is elaborated and the judicial identification of joint bribery crime between the governmental staff and the “specifically related person”,as well as the person excluded from“specifically related person” is also discussed.In terms of the person excluded from“specifically related person” in joint bribery crime,by combining with the cases,the judicial identification of joint bribery crime between the governmental staff and the company,the enterprise personnel,and other personnel is also demonstrated.Finally,the paper elaborates the identification of the common bribery between the governmental staff and the units.In this part,the views and opinions proposed in the theoretical circles on the common bribery between the governmental staff and the units are expounded and the limitations of the theory in the judicial practice are put forward.In the fourth part,the paper discusses the controversial problems in the determination of the joint bribery accomplice in the judicial practice.Firstly,the paper elaborates the two controversies as “seeking benefits for others” in the theory circle that it is a subjective element or objective element.The opinions related to subjective theory and objective theory are analyzed.Then,it discusses it from three aspects of semantic expression,judicial interpretation,judicial practice and shows its position of agreeing with the subjective theory.Next,it proposes the controversy that whether it is reasonable to regard “seeking benefits for others” as one of the elements of common bribery crime.Its rationality and scientificalness of regarding “seeking benefits for others” as one of the elements of common bribery crime are analyzed from several aspects by adopting the Refutation the Negation Theory.Secondly,the paper discusses the identification of the “common possession” in common bribery of non-governmental staff.The understanding and grasping of "common possession" in the crime of joint bribery are analyzed from four aspects.Thirdly,it discusses the problem that whether non-governmental staff can be theperpetrator of the crime of joint bribery.By combining the "positive theory","negative theory" and "compromise theory",it analyzes their advantages and disadvantages and puts forward the opinion that the author agrees with the "compromise theory".Finally,it discusses the dispute in terms of confirming the amount of money involved in joint bribery.The paper carries out analysis of the three different opinions on the amount money involved in joint bribery crime in the theory circle.By combining with the practice of confirming the amount of money involved in joint bribery,the paper proposes that the confirming the amount of money involved in joint bribery should be based on imputation theory of accomplice.