The System Of Special Penalty-relief In The Crime Of Corruption And Bribery

On the background of the complicated situation in the crime of corruption and bribery,the great pressure for handling cases in judicial department,the system of special penalty-relief set in Article 383,paragraph 3 of Criminal Law of the People's Republic of China,will help to promote the investigation of bribery cases and mend criminals' way.But in the judicial practice,this system can not apply to all situations in some degree,and there are still some chaos,like different sentences in the same case.The first chapter mainly introduces the problems existing in the application of the system of special penalty-relief in the judicial practice.The author retrieved 52 judgments from the Pkulaw.By the analysis of these 52 judgments,the author found the following three problems.First of all,in practice,there is a mixed understanding of the nature of the new rules of the system of special penalty-relief.Some people hold the point that these are quantitative circumstances,but some people hold these are discretionary circumstances.Second,the application conditions of the system of special penalty-relief are chaotic.Some people holds that “truthfully confessed his own crimes”“sincere repentance”“active return of ill-gotten gains” need to be satisfied at the same time,but some people do not.Last but not least,the system of special penalty-relief applied improperly.Poor affirmation of active return of ill-gotten gains and too width from the punishment,law applies too freely.The second chapter is the specific elaboration of the content of the system of special penalty-relief.The nature of the system of special penalty-relief,it should be regarded as the quantitative circumstances but not discretionary punishment.The system of special penalty-relief prescribes “truthfully confessed his owncrimes”“sincere repentance”“active return of ill-gotten gains” and “avoiding or reducing the result of damage” need to be satisfied at the same time.These four conditions have their own connotations,and they play a different role in the crime of bribery sentencing.The third chapter specifies the scope of application of the system of special penalty-relief.From the angle of coordination with the general principles of criminal law,the system of special penalty-relief is no conflict with the provisions of surrender,confession and meritorious service in the general rules of criminal law.The main difference between the system of special penalty-relief and surrender is that the time of application.The main difference between the system of special penalty-relief and confession is the different requirements for truthfully confessing their crimes.The system of special penalty-relief requires an active statement but the confessing not.From the angle of coordination with the penal code,the legalization of the discretionary circumstances is a "legislative privilege" and violate the principle of equal application in criminal law.Legalization of the discretionary circumstances should have its own way.Firstly,the legalization of the discretionary circumstances should pay attention to the balance and coordination between criminal law provisions.Then,the discretionary circumstances should be applied to the general rules at the same time.Finally,we should also pay attention to the role of judicial interpretation and guiding cases in the legalization of the discretionary circumstances,in order to make up for legislative lag.