On The Abolition Of The Requirement Of "Seeking Benefits For Others" In The Crime Of Accepting Bribes

Corruption and bribery crimes have always been the focus of national governance.Since the 18 th National Congress of the Communist Party of China,the party and the state have proposed a “zero tolerance” criminal policy for serious corruption,and further tightened the criminal law network of corruption and bribery crimes.However,the requirement of “seeking benefits for others”as the statutory constituent element of the crime of accepting bribes in China is not able to better adapt to the current need to punish corruption and bribery.In theory,the positioning of the element of “seeking benefits for others” has always been controversial.In practice,based on different understandings of the requirement,the conclusions obtained are different.The new types of accepting bribes,such as the accompanying general “emotional investment type” accepting bribes,the “acquisition of financial type” accepting bribes and so on,have brought the difficulties to the identification of the element of “seeking benefits for others”.Although the Supreme People's Court and the Supreme People's Procuratorate issued the “Interpretation of Several Issues Concerning the Application of Laws in the Criminal Cases of Corruption and Bribery” in 2016 to solve the new problems frequently occurred in practice,but there are still some difficulties in the content of the judicial interpretation.Except that there are many problems in the content of the judicial interpretation,the legitimacy of the judicial interpretation itself is also questioned by people.The root of these problems is the necessity of the existence of the requirement of “seeking benefits for others”.In addition to the introduction,the article is divided into six parts.The first part is the legislative evolution of the “seeking benefits for others”.In this part,the article briefly reviews the legislative process of the “seeking benefits for others” and points out the problems in the evolution of the legislation:first,the requirement is vague and does not meet the requirement of legislative clarity;second,the requirement overly limits the scope of punishment;third,the judicial interpretation continues to expand the interpretation of the requirement,but the legitimacy of the interpretation itself has been questioned by the academic community.The second part is the theoretical controversy of the element of “seeking benefits for others”.There are two main viewpoints which are retention theory and abolition theory.People who holds the retention theory have formed the different theories based on the different understandings for the requirement of “seeking benefits for others”,including the subjective theory,the new subjective theory,the objective theory,the new objective theory,the objective over-element theory,the subjective and objective consensus theory and the theory of mixed element of illegality.People who holds the abolition theory said that the theory of retention cannot reasonably explain the theoretical dilemma of the existence of the element of “seeking benefits for others”,so the element of “seeking benefits for others” should be removed from the accepting bribes.Through the discussion of the above-mentioned various theories of the retention theory,the author finds that the various viewpoints of retention theory exist some problems which are inconsistent with the theory of criminal law in various degrees at different levels.The retention theory can not overcome the defects of the element of “seeking benefits for others” in the legislation,so the author also advocates the proposition of the abolition theory.The third part is the practical dilemma of “seeking benefits for others”.In this part,the analysis is mainly around the judicial interpretation of the “commitment to seek benefits for others”,“knowing that others have specific entrusted matters”,“emotional investment type” accepting bribes and the “acquisition of financial type” accepting bribes.Although the judicial interpretation made more specific provisions on the identification of the requirement of “seeking benefits for others”,the dilemma of the identification of the element in practice cannot be completely resolved because the theoretical controversy of the element is not conclusive.In order to adapt to the needs of the current anti-corruption crimes,the judicial interpretation constantly expand the scope of application of the element of “seeking benefits for others”.However,The legitimacy of judicial interpretation itself has been questioned by people.The fourth part is the rationality that abolish the element of “seeking benefits for others”.The dilemma of “seeking benefits for others” is not only reflected in theory but also in practice,which proves that the element of “seeking benefits for others” itself is unreasonable and unnecessary.From the theoretical level,the abolition of the requirement of “seeking benefits for others” is in line with the nature of the crime of accepting bribes,the standard of completion of the crime of accepting bribes,the logic of establishment of legal provisions,the purpose of penalties,the principle of prohibition of repeated evaluation in criminal law and the requirements of clarity and economy of legislation.The fifth part is the necessity that abolish the element of “seeking benefits for others”.In practice,the abolition of the requirement of “seeking benefits for others” is a realistic need to solve the current judicial practice problems,an inevitable choice under the “zero tolerance” anti-corruption policy and a response to the trend of international anti-corruption.The sixth part is the problems that we need to pay attention to when after abolishing the element of “seeking benefits for others”.The problems mainly include the boundary between the crime of accepting bribes and the normal act of gift,the crime of accepting bribes and the crime of fraud.The boundary between the crime of accepting bribes and the normal act of gift must be based on the understanding of the nature of the crime of accepting bribes,combining the daily relations,behaviors,amount of gifts and so on.The boundaries between the crime of accepting bribes and the crime of fraud should start from the constituent elements of the two crimes.The case should be analyzed according to the specific circumstances.