A Study On Deletion Of The "Seeking Benefits For Others" Component In The Crime Of Accepting Bribes

Article 385 of the Criminal Law of People's Republic of China stipulates the crime of accepting bribes of state functionary.There are two types involved,asking for other persons" property and illegally accepting other persons' property,of which the former needs to meet the component of "seeking profits for others"(hereinafter referred to as"profit").There are many controversies about the element from the beginning of its appearance that how could it be identified and applied.The views in theoretical circles are not consistent with judicial practice which increases the complexity of the specific identification of the crime.The "profit" element in the crime of illegally accepting bribes is influenced by the impact of new bribery behaviors born in society.Some new methods of accepting bribes could not reflect the typicality of seeking profits for others in traditional bribery crimes.If the cases are strictly in accordance with the existing constituent elements of bribery in judicial trials,some new bribery behaviors may not be included in the scope of accepting bribes.This will lead to the indulgence of these new types of bribery.If all the behaviors of accepting bribes were to be included in the scope of accepting bribes in order to keep consistent with the advocacy of anti-corruption policies,it will inevitably violate the provisions of the criminal law.In 2016,the Supreme People's Court and Supreme People's Procuratorate jointly issued the "Interpretation of Several Issues Concerning the Application of Laws in Handling Corruption and Bribery Criminal Cases"(referred to as the "Judicial Interpretation 2016").Although Article 13 of the Judicial Interpretation 2016 provides further detailed provisions on the profit element to cope with new needs in reality,the explanation for profit is only the expansive interpretation,which was brought out to solve the problems in reality.It actually has a tendency to violate the principle of legality and has difficulties to get rid of the dilemma of identification.The reason why the "profit" component.has caused many misunderstandings in judicial practice is essentially that the logic system for the determination of accepting bribes in legislation is not clear or even confusing.For the setting of its component,the expression is vague and unclear.These problems have existed for a long time,but they have not been actively resolved in the legislation and no more reasonable standards have been issued.As a result,the identification and application of the requirements in the theoretical and practical circles have long been in trouble.In this regard,in order to fundamentally eliminate this dilemma,the legislature shall reconstruct and revise the component of the crime of accepting bribes,even considering deleting the controversial"profit" component.In this way,the needs of judicial practice could be benefited.The existing anti-corruption system could be strengthened.A good atmosphere in society could be established that people do not dare and could not corrupt.The main part of this dissertation is divided into four chapters.The first chapter introduces the legislative trend and existing problems of the "profit" element.The second chapter demonstrates the limitations of the "profit" component and the deficiencies of few related theories from the opposite side.The subjective theory,objective theory,and subjective-objective theory of the "profit" element are analyzed.Combined with the Judicial Interpretation 2016,the shortcomings of pragmatic interpretation are analyzed.According to the provisions of the Judicial Interpretation 2016,the author carried out a detailed analysis to explain the drawbacks of pragmatic interpretation.The third chapter starts with the theory of the principle of the balance of crimes.Combined with the current situation in China,especially the zero tolerance of corruption in the criminal field and the development of the international community,it is expected that China's anti-corruption struggle is in line with the Anti-Corruption Convention of United Nations and China could perform the obligation as contracting party in order to strengthen the international cooperation in corruption offences.The fourth chapter introduces China's solutions to the elimination of the "profit" element.It is to re-correct the component of the crime of accepting bribes and to abolish the"profit" component as a conviction element but use it as a sentencing component.The innovation of this article:1.Content innovation:There are actually many relevant researches,but most of the research is not deep enough.The study on this element only analyzes the literal meaning and different theories.Nowadays,many types of new crimes have emerged with the development of the economic level.For instance,the emotional investment is a new type that has gone beyond the provisions and application of the original law.For the variety of crime types,the scope of latest judicial interpretation of "seeking profits for others" has been significantly expanded but there are also loopholes and defect.It even violates the principle of legality of crimes.Therefore,the author is discussing the issue of "seeking profits for others" in this context;The author analyzes the connection at legislative level between China and the Anti-Corruption Convention,as well as the correspondence in legislative purpose between Japan and Anti-Corruption Convention.Combined with the actual situation in China,it is concluded that China's bribery crime needs to be refactored.Only in this way can we solve the problem of accepting bribes efficiently and thoroughly.2.Innovation of writing method:The author first analyzes the problems in the beginning and development of the "seeking profits for others" component by analyzing its development process.The author does not simply analyze different theories,but analyze different theories and finds the flaws of different theories from the perspective of "seeking profit for others" component.Subsequently,the author uses the dialectical analysis method to discuss the shortcomings of the component from both positive and negative aspects,as well as the deleting of the component.