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The Explanatory Function Of The Legal Interest Of The Bribery Crime Applicable To The Constitutive Elements

Posted on:2017-06-06Degree:MasterType:Thesis
Country:ChinaCandidate:G Y BianFull Text:PDF
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In China's Criminal Law,the concepts of legal interest have gradually become the core concepts of criminal law ever since Professor Zhang Mingkai introduced and promoted its development.Infringing legal interests or not has become the main standard in solving problems both theoretically and practically.This article starts from the legal interest the bribery crime may infringe,discussing the legal interest of taking bribes and finally draw the conclusion that bribery violates the law that national staff's positions behavior can not be bought.The non-buying nature not only includes the nature itself but also the trust from the public to it.The nature of bribery is bartering.Analyzing the legal interests of bribery can further develops legal interests' explanation function to the constitutive elements.For the nature of bribery is trading power for money,this article refines the concept of "power"and "power source" from legal interest in taking bribes and interpret the standard of national staff from the angle of "power "and" power source "this article focuses on the judicial practice happened after the promulgation of the Supreme People's Court,Supreme People's Procurator-ate"on the handling of state-invested enterprises in the crimes committed in the application of law issues opinions" in 2010.According to the confusion the national staff of state-funded enterprises identified,this article will propose new ideas to define the state invested in staff from the the angle of power and power source.For the factors of components for taking bribes,the author holds the opinion that we should start from the angle of legal interest.On the identification of it,we should grasp the connection and restriction between national staff's positions and the interests of the briber.Additionally,we should further discuss the concept of forming convenient conditions by his powers or positions and his position behavior.At the same time,the author points out that seeking interests for others and taking advantage of his position may have coincidence.From the perspective of bribery legal interests,Whether to seek interests for others is not the necessary condition to infringe on bribery law,so we suggest deleting it.Finally,this article,stating from the bribery legal interest,will make theoretical analysis on the concrete practical problems of identifying the accomplished bribery,attempted bribery and bribery amount,hoping to correct the misunderstanding of identifying these problems in the judicial practice and to avoid ignoring the nature problem of bribery law violations.
Keywords/Search Tags:bribery legal interests, national staff, taking advantage of his position
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