Nature Determination Of The Act Of Intercepting Bribes

Intercepting bribes is a kind of “black-and-black” behavior,which is an illegal act arising from another unlawful conduct.Hence,it is difficult for the judicial authority to deal with this issue in the same way.Generally,there are three solutions including not constituting a crime independently,constituting a crime of fraud or embezzlement.Whether the act of the intermediary who has secretly possessed a part of bribes could constitute a property crime,there forms the affirmative theory,negative theory and two-point theory in academe.The negative theory says that the behaviour of intercepting bribes does not constitute a crime alone.The affirmative theory insists that it could constitute a crime of embezzlement.While the two-point theory deems that it is not possible to constitute an embezzlement crime in the case of illegal payment,but could constitute a crime of embezzlement under the circumstances of entrustment based on unlawful causes.These fierce controversies can easily lead perpetrators to escape legal sanctions.In order to solve the dispute about whether or not to criminalize the act of interception and what kind of crime in judicial practice,this article starts from the criminal law itself and elaborates on the theoretical basis behind the different perspectives and the decisions,at the same time,it puts forward a new theoretical construction about the conviction of the act of intercepting bribery,and provides a sort of theoretical foundation and judgment basis for the conviction of the act in judicial practice.Specifically,the whole text is divided into four parts in addition to the introduction and conclusion:The first part is an overview of the practice of intercepting bribes.The term of intercepting bribes is a non-professional legal term,so it needs to be defined conceptually.On the basis of clarifying the meaning of "interception","bribe" and "intermediary",the author thinks that the act of interception is an act by which the intermediary in a criminal case involving bribery,other than the two sides of the bribe,for the purpose of illegal possession,intercepts part or all of the property and alleges that the bribes have been handed over in full.Subsequently,it classifies the acts of intercepting bribes in accordance to whether the actor has withheld all the money,the generation time of the illegal possession,and whether the entrusted funds have specific purpose,the identity of the principal and so on.The second part mainly discusses the qualitative controversy of the act of intercepting bribes,focusing on whether it needs to be evaluated separately and whether it can constitute the crime of embezzlement.The discussion focuses on whether the infringement of interests are protected in the negative theory,and to some extent,it neglects whether the behavior is illegal;meanwhile,it must be said that the prestation of illegal reasons with the meaning of terminal transfer is confused with the entrustment of the non-final transfer meaning in the affirmative theory,which is liable to induce confusion in the judicial conviction.The conduct occurs in the course of bribery crime,which is different from the legal interest infringement of bribery crime.It needs to be convicted separately.Therefore,the author agrees with the two-point theory,that is,to explain the possibility of constituting the crime of embezzlement under different conditions from the perspective of distinguishing the attribute of the act of delivery.The third part is about the theoretical construction of the nature determination of the act.The act that the briber entrusts the intermediary to transfer bribes,is the act of entrustment based on illegal causes.The twopoint theory not only helps to maintain the unity of the law order,taking into account the supplementary and modest nature of the criminal law,but also helps to protect the legal benefits of the trust relationship and prevent similar crimes.Whether or not the intercepted bribes shall belong to the other's property is also of great significance for determining whether the act of intercepting bribes could constitute a property crime.Whether or not the property belongs to the instrument of the crime can only be determined if it is linked to the preparatory act of whether the intermediary proceeds to commit the crime of bribery.The fourth part focuses on the different types of intercepting bribes to make the judicial characterization.The premeditated interception of bribes is constituted as a crime of fraud.The temporary interception of bribes is established as a crime of embezzlement.The attempted bribery and bribesextorting interception can only be assessed as the continuation of the bribery criminal accomplice.Generally speaking,there is no need for a separate evaluation of the opportunistic interception of bribes.Before the occurrence of the interception,the illegal entrustment between the principal and the intermediary was a problem that is estimated as the crime of introducing a crime,the crime of offering bribes or an accomplice of the crime of acceptance of bribes.It often becomes a hot issue in judicial practice.Therefore,on the basis of reserving the crime of introducing a crime,this paper makes some comments on the distinction both the crime of introducing a crime and the accomplice of bribery crime from the angle of the balance of crimes for the purpose of establishing criminal law.