Judicial Determination Of The Behavior Of Withholding Bribes

In recent years,the high frequency of the cases 0f withholding bribes have aroused widespread concern in the theoretical and judicial practice circles.The cases of withholding bribes are derived from the introduction of bribery cases and are therefore more complicated than ordinary bribery crimes.There are various types,Usually,the behavior of withholding bribes is evaluated as the crime of embezzlement,the crime of fraud,or as a sentencing circumstances.Of course,since the behavior of withholding bribes involves the theory of payment for illegal reasons,the civil law does not protect the right of returning the request for the principal.Therefore,some scholars advocate that the criminal law does not need to intervene,and advocates that he behavior of withholding bribes guilty.In the civil case,the act of possessing the principal’s property by the system acquiring profits improperly,and the court ruled that the trustee returned the trust to the requester.The reason why there are many different judgments for the same case,is mainly because the behavior of withholding bribes is another illegal act that is caused by the payment for illegal reasons.Due to the lag of the law,there is a lack of corresponding legal provisions in the criminal law to regulate,and the theoretical circles have great differences on the views of the behavior.The behavior of withholding bribes is illegal in nature.If you do not use criminal law to regulate,the unhealthy trend that may encourage bribery.How to solve judicial determination of the behavior of withholding bribes,this thesis sorts out the qualitative practice of the behavior at home and abroad,and concludes that there is the disunity of the theoretical circle.It mainly focuses on whether to distinguish between the payment for illegal reasons and the commission for illegal reasons,whether to use the criminal law to evaluate it and other issues.The focus is still on the illegal judgment in the field of criminal law,which requires a correct grasp of the relationship between the criminal law and the civil law.The criminal law pays attention to the maintenance of the overall order of society,and the civil law pays more attention to the protection of individual rights.Therefore,the purpose of criminals’ legislation is quite different.Based on this,that the qualitative problem of the behavior of withholding bribes should be discussed from the perspective of criminal law,and to find the unified standard of the behavior,which is the principle of relative independence of illegal judgment and the principle of protection of legal interests.Under this standard,it is determined that the behavior is regulated by the criminal law and the behavior is differentiated according to the specific type of performance of it.In dealing with the problem,evaluate it as the crime of embezzlement,the crime of fraud and un-punishable post factumn according to the constitutional elements of the crime,the subjective and objective factors.When complying with the constitutional elements of the crime,the behavior without the meaning of introducing bribe can be judged as the crime of fraud;the behavior of introducing bribes but not actually implementing,the behaviorof withholding part of the property and transferring it,can be judged as the crime of embezzlement;the behavior of embezzling the property after being rejected can be judged as un-punishable post factumn.