On Several Problems Of Influence Related Bribery

This thesis takes the Crime of Taking Bribe by Using Influence and the Crime of Offering Bribes to Influential People together as Influence Related Bribery.And it divides into four parts to illustrate several problems of the influence related bribery in the perspective of legislationpurpose and judicial application by analyzing two crimes.The first part of this paper elaborates the legislative evolution and legislative intent of influence bribery crimes.First,it introduces the legislative evolution of bribery criminal subjects.In the criminal law enacted in 1979,the crime of corruption is stipulated in the crime of infringement of property,while the crime of accepting bribery is stipulated in the crime of dereliction of duty.The main body is the national staff,and then subsequent judicial interpretations successively supplemented several subjects.The Criminal Code enacted in 1997 changed the legislative model of the1979 criminal law,and stipulated the two crimes jointly in the chapter on the crime of corruption and bribery.With the new situations and new problems that have emerged in the course of social development,the "Criminal Law Amendment(VII)" and "Criminal Law Amendment(IX)" have added the use of influence to accept bribery and to influential people to commit bribery.It shows that the criminal law incorporates the "people around you" of state workers into the scope of the regulation of bribery crimes.Second,it analyzes the impact of the crime of influence trading inthe UN Convention against Corruption on China's setting up of bribery crimes,in particular the impact on the creation of bribery offences for influential people.The Criminal Law draws on the legislative attitude of equal punishment for bribery parties and bribery parties,and combined with actual national conditions to increase the number of people who have influential people to pay bribery,thus increasing the penalties for bribery.Third,it analyzes the legislative intent to influence bribery crimes.On the one hand,taking into account the increasingly diversified and hidden nature of corrupt practices,indirect transactions of power and money require frequent penal regulations;on the other hand,it is not difficult to discover the legislative trend and value orientation reflected by successive amendments to the Criminal Law.China's Bribery Crime Legislative Model Shows Characteristics of a Symmetrical Crime System.The second part of this paper discusses the connotation of “influential power” in the influence of bribery crimes from the perspective of criminal law hermeneutics.First,it elaborates the objectives and methods of criminal law interpretation.The interpretation of the criminal law should be based on the legal text,beginning with the range of meaning that the text can accommodate and finally the purpose of legislation.According to different interpretation methods and interpretation effectiveness,the interpretation of criminal law can be divided into different types.There are successive points among various methods.This is an inevitable requirement of logical thinking.Second,from the perspective of hermeneutics,the concept and objective behavior of "influence" are analyzed.First of all,through the literal interpretation,the connotation of “influence” is: essentially a controlling force that can exert influence on the thoughts and actions of others and cause others to make changes.According to the different nature of influence,it can be divided into power influence and non-power influence.Secondly,because the influence bribery crime belongs to the bribery crime,it is necessary to place it in the bribery crime system.It will use the influence bribery and bribery crimes,the“utilization of influence” in the bribery,and the “use of the position”.This objective behavior is compared.Finally,it analyzes the objective behavior of bribery forinfluential people.In order to ensure the integrity and coordination of the criminal law system,the means of bribery for influential people who commit bribery should be consistent with the crime of bribery,and its limitation should be interpreted as“actually given”.The third part of this paper mainly discusses the issue of identifying the main body of influence and bribery crime.First,there are five types of subjects that use the influence of bribery.First,there are five types of subjects that use the influence of bribery.With regard to the scope of close relatives,the criteria for the recognition of general principles of civil law should be adopted,namely spouses,parents,children,grandparents,grandparents,grandchildren and grandchildren.The definition of a closely related person should introduce an objectively verifiable fact,namely,"closely related facts," including the fact that there are special feelings,interests,or common interests between close people and state workers.There are two kinds of situations for resigned national staff: one is the retired national staff;the other is the main body who has lost the status of national staff for a specific reason.National staff can also be the subject of this crime,but require the use of non-power influence.Secondly,the subjects of bribery for influential persons include natural persons and units.The natural person is the person who has the full criminal responsibility after the age of 16 years.The unit entity does not have the qualification of an independent legal person,but it must meet the unit.Crime features,in the name of the unit,criminal activities carried out within the direct responsibility of the person in charge,and the proceeds of crime and its benefits are attributed to the unit.Third,the specific relationship and the close-related person were analyzed.First of all,at the level of contextual interpretation,the specific relationship emphasizes the nature of the relationship,which is a form of judgment,and the relationship is closely related to the degree of intimacy.It is a substantive judgment.The extension of a closely related person is greater than that of a specific person.Second,at the legal level,the specific relationship includes the close relatives,but the close relationship and the close relatives are in a side-by-side relationship.The two cannot be completely identical.Finally,at the level of joint crime formation,close-knit individuals can independentlyconstitute crimes,while specific related parties only It can constitute an accomplice of bribery,so the two are both overlapping and distinct and belong to a cross relationship.The fourth part of this article is the determination of the accomplices involved in bribery crimes.First,it elaborates on the theoretical basis and accomplices of the formation of accomplices.If there is a commonality in the behavior,an accomplice can be established,thus affecting the ability of bribery.Establish a joint crime;the author believes that the handling of accomplices that affect the crime of bribery should be based on the "acts of conduct" and the combination of accomplices.If the affiliated person actively uses his or her influence to receive the trustee's property alone,and later shares the property with the national staff,he shall be deemed to have used the crime of accomplice in the crime of accepting bribery and to be convicted and sentenced respectively;if the liaison person only shares the property with the national staff Property,without exerting influence and actively lobbying,shall be deemed to be an accomplice of accepting bribes.The first and second situations mentioned above should be treated differently according to the different circumstances of the behaviors of close relatives and specific related parties.The third situation should be deemed as the relationship person's obligation to use bribery,and the state staff has the obligation to return or submit property.In case of refusal to perform,the law presumes that it has the intention to accept bribery,and it constitutes an accomplice with the person involved,conviction and punishment for the crime of accepting bribes,and requires the trustee to sue for bribery against influential people.In addition,in the fourth scenario,the concept of “other than close relatives and specific connected persons” does not exist,and its connotation has been embraced by the category of closely related people.