Study On The Element Of "Seeking The Unjustified Interests In The Crime Of Bribery"

To seek illegitimate interests,as one of the constitutive requirements of Article389 of the Criminal Law of China,is also the core of the crime of bribery.As a serious economic crime,the crime of offering bribes not only makes the public trust of the party and the government greatly reduced,but also leads to the overall decline of the moral level of the public,it has considerable social harmfulness.No matter in theory or in judicial practice,the understanding and application of this important document is still controversial,which further affects the judicial organs cognizance of the crime of offering bribes,such as the connotation and scope of illegitimate interests and the nature and status of seeking illegitimate interests,and so on.Careful analysis of the existing differences and disputes,the overall conclusion is that the understanding of the elements is not deep enough,deviated from the nature of the crime of bribery,ignoring the bribery party's job behavior.Based on this,this article is prepared to analyze and study the elements of seeking illegitimate interests in the crime of offering bribes on the basis of the existing academic perspective,in order to provide reasonable judicial practice for the determination of bribery feasible operation path,which can effectively solve the problem of confusion about bribery crime in judicial practice.The article is divided into four parts,a total of about 37,000 words :The first part is the historical evolution of the elements of seeking illegitimate interests in the crime of offering bribes.First of all,inspected the ancient and modern legislative provisions on the crime of bribery,paving the way for the study of modern bribery;secondly,it focuses on the formation and development of the elements of seeking illegitimate interests in the bribery crime after the founding of the Peoples Republic of China,from the initial illegal interests to the abolition of illegal restrictions,and then to the final establishment of the improper interests,to study the whole process of the formation of seeking illegitimate interests;and the scope of illegitimate interests also showed an overall trend of expansion.In short,To seek illegitimate interests has experienced the evolution from zero to one,from development to perfection.The second part is to seek illegitimate interests judicial application problems and theoretical disputes.First of all,analysis and collation of judicial practice on theelements identified difficult circumstances,such as;the perpetrator asked the other party to speed up their performance of their duties or to perform their duties normally,how to identify problems and how to determine the behavior of people to seek competitive advantage and pay property situation.Secondly,the focus of the theoretical circle on to seek illegitimate interests of the controversial focus,around its scope,nature and the abolition of the analysis,pointing out the deficiencies of the views of the various doctrines,to pave the way for their own views.The third part is the understanding and application of the theoretical level of to seek illegitimate interests.First of all,we should make clear the connotation and scope of illegitimate interests,and think that illegitimate interests are not reasonable and legitimate for a person,and they are not in line with social development needs and peoples interests,the moral standard that does not meet the minimum requirements,the individual material and non-material benefits based on the needs of survival and development.The scope of illegitimate interests should include three aspects : the interest itself is illegal,the illegal help provided by the state functionaries and the interests of violating the principle of fairness and justice.Furthermore,it is considered that the general bribery crime should be retained,and the threshold of the crime of bribery should not be reduced.Extortion bribe does not require the perpetrator to have the purpose of seeking illegitimate interests,this section is a negative component of the crime of bribery,and common bribery provisions constitute the constituent elements of the crime of bribery.Finally,it is proposed that the element should be considered from the perspective of the briber,and return to the nature of the crime of bribery,that is,the state functionaries can not be bribed,and combined with the national staff positions it provides a new perspective for the identification of for the purpose of seeking illegitimate interests.The fourth part is to resolve the judicial dilemma of seeking illegitimate interests.First of all,several judicial problems in the crime of bribery are dealt with,and it is considered that the behavior of the person who requires the state functionaries to pay property for their normal performance is not considered to be a crime;the acceleration fee issue should be specifically analyzed in specific circumstances,and only the behavior of the state functionaries to conduct transactions in real terms shall be convicted and punished;Whether it's economic activities or personnel management activities,actors only try to win their competitive advantage by giving the benefits of relevant state organs staff.,regardless of their ownadvantages are objective existence,constitute bribery.Whether the personnel violate the duty for the briber profit,and finally comprehensively consider the nature of the crime of bribery and other related factors,strictly adhere to the principle of a legally prescribed punishment for a specified crime,the correct use of criminal law to explain the essence,we should accurately grasp the criminal policy of bribery,and provide a new and workable idea for judicial practice to identify the crime of offering bribes.