The Research On Qualitative Determination Of The Behavior Of "Intercepting Bribe"

The behavior of “intercepting bribe” is not a normative legal term.It generally refers to a kind of phenomenon that often occurs in bribery cases.There exist many controversies in the criminal law field about qualitative determination of the behavior.At the same time,in current judicial practice,the way of dealing with the behavior is also controversial.On the basis of clarifying the behavior's definition,subject,object and way,this thesis classifies the behavior.And at the same time,this thesis analyzes the current qualitative disputes of the behavior of “intercepting bribe”.Then on the basis of the conclusions of the analysis,this thesis summarizes the qualitative determination of the behavior according to different types.The thesis is summarized as follows:The first chapter is about an overview of the behavior.Through the analysis of the concept,the behavior's subject,mode and object are clarified.Then according to different identities of middleman,the behavior can be divided into two categories: the joint bribery type behavior of “intercepting bribe” and the non-joint bribery type behavior.The joint bribery type behavior can be subdivided into two categories: the joint bribery of giving a bribe type behavior and the the joint bribery of accepting a bribe type behavior.The non-joint bribery type behavior can be subdivided into two categories: the introducing a bribe type behavior of “intercepting bribe” and the ignorant middleman type behavior.Among them,the introducing a bribe type behavior is mainly divided into two categories according to the different time of the illegal possession intention of the perpetrator: the behavior with the idea to “intercept bribe” in advance or on the spur of the moment.At the same time,some special types of the behavior appearing in judicial practice cannot be classified into the above-mentioned types,so they are collectively referred to as special types of behavior of “intercepting bribe” to analyze singly.The second chapter is about the qualitative controversies of the behavior of “intercepting bribe”.Though sorting out and analyzing the qualitative disputes of behavior of “intercepting bribe”,the conclusions are drawn,which lay a foundation for the subsequent qualitative determination of different types of the behavior.At present,there are mainly four doctrines for the qualitative determination of the behavior of “intercepting bribe”: the theory of unjust enrichment of the behavior of “intercepting bribe”,the theory of non-independent evaluation of the behavior of “intercepting bribe”,the theory of the crime of fraud of the behavior of “intercepting bribe”,and the theory of the crime of embezzlement or fraud of the behavior of “intercepting bribe”.Though the analysis of the above four theories,the author negates the unjust enrichment theory and thinks that the behavior of “intercepting bribe” should be included in the scope of criminal law evaluation.Secondly,the author thinks that the behavior implement by the person who introducing a bribe or giving a bribe needs to be evaluated separately and the behavior implement by the person who accepting a bribe does not need to be evaluated separately.Thirdly,as for the theory of the crime of fraud,the author believes that the theory has reasonable elements,but it also has some inadequacies.The author agrees with the theory's view that bribe can be the object of the crime of fraud,but disagrees with the idea that all the behavior can constitute the crime of fraud.Finally,as for the theory of the crime of embezzlement or fraud,the doctrine claims that the behavior can constitute the crime of embezzlement or fraud according to the time when the perpetrator's intention of illegal possession occurs.The author agrees with this view.But in the specific arguments,the author thinks that there are defects in the theory.The third chapter is the qualitative determination of different types of the behavior.On the basis of the full analysis of the qualitative controversies of the behavior,the author summarizes the qualitative determination of different types of the behavior.For the joint bribery type behavior of “intercepting bribe”,the joint bribery of giving a bribe type behavior can constitute the crime of embezzlement;the joint bribery of accepting a bribe type behavior does not need to be evaluated separately as a crime.For the non-joint bribery type behavior,the behavior with the idea to “intercept bribe” in advance of the introducing a bribe type behavior can constitute the crime of fraud;the behavior with the idea to “intercept bribe” on the spur of the moment of the introducing a bribe type behavior can constitute the crime of embezzlement;the ignorant middleman type behavior can constitute the crime of embezzlement.For the special types of behavior of “intercepting bribe”,the behavior can constitute the crime of fraud when the perpetrator gets the bribe because of the second demand;in the case of giving a bribe by unit,the behavior of the unit staff can constitute the crime of official embezzlement.