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On The Penalty Standard Of Plot In Bribery

Posted on:2019-06-29Degree:MasterType:Thesis
Country:ChinaCandidate:G WangFull Text:PDF
GTID:2346330545961670Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The punishment criterion for "amount-depending theory" in crimes of bribery has suffered a long-time criticism in law circles for its numerous loopholes.Therefore,in Amendment ? to the Criminal Law of the People's Republic of China,the punishment criterion in crimes of bribery is amended to dual criterion "amount or circumstance",and three grades for sentencing shall be established.In accordance with regulations in Crimes of Embezzlement and Bribery Interpretation,the criterion for circumstance shall not attach to circumstance only,but to certain amount of money.As for whether the criterion shall attach to certain amount of money,there are two different views in law circles,they are,the positive and the negative.The former one is more of rationality,and reasons are following.First,amount is the basis in punishment fitting the crime in bribery,so no doctrinal barriers exist if the criterion for circumstance is attached to certain amount of money.Second,the judge's discretionary power shall be over-expanded if a person is convicted of a crime only by circumstance,which leads to the confusion of judicial application.Hence,in terms of judicial application,the criterion for circumstance shall be attached to certain amount of money.In Interpretation,the concrete interpretations of the punishment criterion are not without any loopholes.For one thing,the interpretation of sentencing grade "another particularly serious circumstance" establishes range of application of death penalty which obeys the legislation.Meanwhile,a lack of cohesion in amount collocation,which is bound to violate the principal of suiting punishment to crime and responsibility in judicial application.Therefore,the legally-prescribed punishment of"another particularly serious circumstance" should be amended as:it shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment,be fined and also confiscation of property.The corresponding amount of three sentencing grades in criterion for circumstance are 10,000 to 100,000 yuan,100,000 to 1500,000 yuan and 1500,000 to 3000,000 yuan.For another thing,aggravation of circumstances as "before crime" and "after crime" attaching to criterion for circumstance shall not be the circumstance that aggravate the degree of illegality,but the discretionary heavier factors of sentencing.It is not in conformity with legal principle if they are regarded as circumstances of incrimination or upgraded to the legally-prescribed punishment of circumstances.So they shall be abolished.Meanwhile,identity shall be regarded as a crucial factor to judge the degree of illegality,and it is in conformity with legal principle if peculiar identity is regarded as circumstance of incrimination or upgraded to the legally-prescribed punishment of circumstance.Moreover,there are plenty of legislation precedents in Chinese law.Therefore,when the bribery is engaged by any judicial functionary and State functionary who have the responsibility of supervising and managing food,medicine,safety production and environmental protection,the bribery shall be regarded as aggravation of circumstance for penalty below minimum statutory prescript,for they have worse influence on society than common State functionary.On the specific application of criterion for circumstance,when some amount involves in aggravation of circumstance for penalty below minimum statutory prescript,there are different views in theoretical and practice circles about whether shall be incriminated or upgraded to legally-prescribed punishment.Or shall be free to judge by a judge,or shall be determined by the proportion of the total amount of bribes taken into account in relation to aggravation of circumstance for penalty below minimum statutory prescript,or,shall be confirmed by the absolute amount of aggravating circumstances involved.However,these methods shall not comprehensively and scientifically evaluate bribery,there is a problem of violating the principal of suiting punishment to crime and responsibility.Hence,the money not involved in aggravation of circumstance for penalty below minimum statutory prescript shall be doubled,together with the money involved in aggravation of circumstance for penalty,and in accordance with the calculated amount,the standards of amount should be applied to determine whether to incriminate and grades for sentencing.
Keywords/Search Tags:Crimes of bribery, Punishment fits the crime, Circumstance
PDF Full Text Request
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