Research On Several Issues Of Transactional Bribery

Based on the Opinions on Several Questions of Apply the Law in Dealing with Criminal Cases of Bribery(hereinafter referred to as Opinions),this paper,combining with relevant cases,analyses the controversial viewpoints existing in the current transactional bribery crime and their impact on conviction,and divides them into four parts to further discussion.The first part briefly describes the significance of the study of transactional bribery and the reasons why the so-called "transactional act" is recognized as a crime.At present,bribery crime is highly prevailing in our country.With the economic transformation and development,its means are constantly changing,which greatly increases the difficulty of procuratorial organs in dealing with investigation.The courts will also have some differences in hearing relevant cases,which will not be conducive to the further development of anti-corruption action.As a new type of bribery crime,transactional bribery completes the crime under the cover of seemingly normal civil and commercial acts.Compared with the traditional forms of bribery,it has the characteristics of diversity and concealment.It is precisely with the coat of "transactional acts" and the above difficulties that the situation of decriminalization may arise.We must correctly understand the reason why the "transaction act" is convicted,that is,the essence of the power-money transaction has not changed.In this process,the interests protected by the criminal law are infringed,that is,the non-buyability of the official acts of state functionaries.The second part combines with examples to analyze the constitutive elements of transactional bribery in a more comprehensive way,involving four aspects: analyzing and demonstrating the conditions of establishing transactional bribery accomplice between persons without special status and state functionaries.Demonstrating that the briber should have a subjective understanding of the value of property and the nature of bribery of property,but no need to be the intention to use it.What is the benefit the law want to protect of this crime has always been controversial.In this paper,the reasons why legal interest is unbribable for the official behavior of state functionaries are analyzed and demonstrated.In the objective aspect,the author discusses the various practices of transactional bribery,including low-price buying and high-price selling,and discusses four possible acts of transactional bribery under the "other" provision.The third part is the key content of this article,which is divided into three sections to discuss the factors affecting the conviction of transactional bribery.The first section is about how to determine the amount.The Opinions stipulates three criteria of "trading time","market price" and "obvious".But they are too vague to provide clear guidance for practice.The former two are also influenced by many factors,such as civil and commercial laws and trading habits,and are prone to disagreement.However,there are many disputes about the extent to which it can be regarded as "obvious" and clear guidelines should be provided.Section two is about the identification of preferential shopping.We can neither deprive state functionaries of the right to preferential shopping in order to fight crime,nor indulge in the subsequent bribery.Therefore,it is very important to define the boundaries of preferential shopping.Article 1 of the Opinion does not entirely list the objects of transactional bribery,but uses "equivalents" to summarize,and how to determine its scope is detailed in section three.Because of the limited number of articles,it is impossible to include the content of transactional bribery in all details,which is unavoidable to be omitted.In the fourth part,the author will put forward two suggestions to improve it.Among them,the preservation and abolition of the element of "making benefits for others" has always been controversial.The author focuses on the feasibility of abolishing it as a constituent element of the crime of accepting bribes.In order to help grasp the transactional bribery crime more accurately.