Study On The Controversial Issue Of "Bribery" In Criminal Law

Bribery is the object of bribery crime,and there are many disputes about "bribery" in criminal law theory.There are different views on the understanding of the essential attribute of bribery.The property theory thinks that bribery refers to material objects such as money,while the property interest theory thinks that bribery should also include property insurance interests that can be calculated with money.The benefit theory thinks that bribery should be the benefit that can satisfy people's needs,including the non-material benefit.The legal interest of bribery crime is the incorruptibility of official behavior.Sexual bribery is the behavior of solicitors seeking the benefit of the trustee by means of sex.Sexual bribery is spreading in practice and has not been criminalized in our criminal law.The main reason against criminalization is to adhere to the principle of legality and the modesty of criminal law,and that the criminalization of sexual bribery is difficult to operate.The main reason for criminalization is to focus on the social harm of sexual bribery.The social harm of sexual bribery is worse than that of property bribery,so it is difficult to crack down on sexual bribery effectively.After sexual bribery is criminalized,it may be divided into sentencing grades according to the number and number of people who accept sexual bribery,the size of seeking benefits,and the degree of harm to the state and society.Free share bribery is the briber to the briber free to enjoy dividends of the shares.The method of free share transfer is divided into the method of registering the equity transfer and the method of proving the actual transfer with evidence.The actual transfer can be determined from the following aspects: whether there is a transfer agreement,whether the bribee obtains economic benefits based on the equity,whether the bribee has the right to transfer shares,the right to distribute the remaining assets of the company,and whether the bribee himself or other entrusted persons participate in the company's management and decision-making based on the equity.There are six types of free share bribery: full capital contribution,partial capital contribution,low price transferee,"borrowing" to become a shareholder,increasing capital and share bonus,and accepting "empty shell" company shares.According to the provisions of judicial interpretation,the crime amount of free share bribery is determined according to the value of equity,but for the situation that the power stake brings huge direct benefits,it cannot objectively reflect the degree of social harm.It is necessary to identify the amount of crime for the huge direct benefits brought by the power stake.High-interest bribery is the behavior of briber to borrow money from briber and pay high interest.A typical feature of high-interest bribery is that the bribe-taker actually lends the money to the bribe-giver,which has led to controversy over how to calculate the amount of the crime.As for the determination of the criminal amount of high-interest bribery,in practice,there are mainly four views: the determination of full amount,the standard of private lending rate in the same industry,the standard of loan rate in the same period of the borrower,and the standard of 24% annual interest rate.The borrower loan interest rate standard for the same period said insisted on the principle of the criminal law consistent with the subjective and objective,with the borrower to borrow money from the general interest rate as the deduction standard,but did not solve the case of no reference interest rate.In the case that there is no loan interest rate available for reference for the borrower in the same period,the highest deposit interest rate of the bank in the same period can be used as the deduction standard to reflect the deserved income of funds more objectively,and it has a strong operability.