The Research On The Identification Of "Illegitimate Benefits" In Bribery Crime

Article 389 of the criminal law specifies that “seeking improper profits” constitutes an important element of the crime of bribery,but the confusion in theory and practice still exist in how to determine the “improper profits” and its standard of judgment though the judicial interpretation is involved.Throughout our country's judicial practice,the different standards in judge the crime of bribery and the diversity of the results of the judgment exist repeatedly,which has bad affection on the regulation function of criminal law to bribery crime.The reason is that there is no unified understanding of " improper profits " in the theory and practice of criminal law.First of all,proper and improper as a social evaluation standard is relative,evaluation results are often different by different people.Second,the connotation of “improper profits” is not accurately defined,the existing theories have certain rationality and one-sidedness,which can not reveal the total connotation of “improper profits”.Third,in practice,the identification of "improper profits" is mostly from the point of view of the actor,which lead the judgment thinking similar to actor,it is too subjective.Thus,it is difficult to get the accurate definition of “improper profits”,which leads to a difficult situation for judging the crime of bribery.Through the study of three aspects of the connation,extension of “improper profits” and whether retain the element or not,we incline to agree the basic position of “new job violation” and determine the “improper profits” from the essence of the bribery crime.The essence of the bribery is to make national stuff members perform improperly through improper means.In the process of judicial practice,we must follow the legislative intention and clarify the extension of“improper profits”,so that we can combat the scope of bribery crime accurately.The current criminal law regards“seeking improper profits” as a element of bribery crime,which is fit in with the reality of China and the need for rule of law.According to the new theory,from the relationship between “ bribery act” and “undue performance of national stuff”,we can analyze the special form of the “improper profits” of bribery crime.