Study On The Complicity Issue In The Crime Of Organizational Bribery

As stipulated by Article 393 of the Criminal Law of the PRC:"If an organization bribes for seeking illegitimate interests or offers national staff members with kickbacks and handling charges in violation of state regulations,under severe circumstances,the organization shall be fined and the directors directly responsible and other personnel with direct liability shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention with fines.".There have been relatively unified viewpoints and mature expositions on hot topics related to the crime of organizational bribery in judicial practice,such as "what does "an organization"refer to?"and"how are"illegitimate interests"defined?",in the theoretical realm.However,there are few expositions on whether the crime of organizational bribery can constitute a complicity or not.In this paper,the complicity issue in the crime of organizational bribery will be researched from four aspects,attempting to propose the suggestions of more referential significance.Firstly,can an organization and another organization constitute the complicity in the crime of organizational bribery?In Article 25 of the General Provisions of Criminal Law,"the complicity refers to the crime jointly committed by two or more persons"where"persons"shall refer to both natural persons and organizations.The subject of the crime of organizational bribery is an organization and an organization and another organization should constitute the complicity in the crime of organizational bribery.The joint bribery crime of an organization and another not only requires the subjective common intention but also requires the objective common acts.There should be two processes in the generation of joint intention,including the process that the individuals' intentions are raised to the organization's overall intention within each organization and the process that each organization's intention forms the common intention by joint conspiring.Meanwhile,since an organization and another can constitute the complicity in the crime of organizational bribery,the principal,accessory and coerced accomplices should be distinguished according to the nature and functions of acts.Secondly,can an organization and natural persons outside the organization constitute the complicity in the crime of organizational bribery?It can be judged in two ways,including the circumstance where the organization and natural persons outside the organization make use of each other's convenience in the joint bribery crime and the other circumstance where the organization and natural persons outside the organization only make use of convenience of one party.The author believes that the reasonable position for the joint participation of an organization and natural persons outside the organization in the bribery crime is to decisively determine the crimes of the organization and natural persons outside the organization instead of the establishment of complicity.Thirdly,can an organization and natural persons in the organization constitute the complicity?In the crime of organizational bribery,the liabilities of the directors directly responsible and other personnel with direct liability in the organization shall be investigated,which is related to the penalty setting of the crime of organizational bribery in China instead of the natural person who acts as the principal in the organization.If the natural person on behalf of the organization solely gives bribes properties that all come from the organization for seeking individual interests while giving bribes properties for seeking illegitimate interests,it can only be adopted as a sentencing consideration for undertaking the criminal liabilities in the crime of organizational bribery rather than the constitution of another crime.Fourthly,can the directors directly responsible and other personnel with direct liability in the organization constitute the complicity?First of all,there remains a precondition to be solved,that is,which personnel shall be defined as the directors directly responsible and other personnel with direct liability.With clear definition,the author believes that there lacks legitimate basis or legal principal basis in the viewpoint that the directors directly responsible and other personnel with direct liability can constitute the complicity and the viewpoint can cause the complexity of penalty for the directors directly responsible and other personnel with direct liability.Therefore,under such a circumstance,the author also believes that it is impossible to constitute the complicity.