Research On Judicial Application Of Cooperative Investment Bribery

In judicial practice,new types of bribery crime committed by state functionaries are becoming more covert and complicated.Opinions on Some Issues Concerning the Application of Law for Handling Criminal Cases of Bribery-Taking co-published by the Supreme People's Court and the Supreme People's in 2007 clearly stipulates numerous new forms of the crime of bribery-taking in order to address the need to handle such kind of cases in practice.As a new type of bribery,bribery in the form of cooperative investment,and its relevant stipulation are also faced with new questions in judicial application.Seeing from the results of verdict of bribery cases of cooperative investment in recent years,issues such as "contribution of fund and advance fund","business operation and management","power for money deal" and the amount of bribes have become the focus of controversy among the prosecutor,defense and the judge.With regard to the conflicts in judicial practice,complicated factors including disguised replacement and confusion of concepts,overlapping of civil and criminal laws and different identification standards are involved.At the present stage,a unified judgment standard is the primary issue to be resolved in the process of law application for bribery in the form of cooperative investment.By analyzing the focus of controversy,upholding the essence of judgment,and guided by the fundamental principles of the criminal law and the guiding principles of judicial interpretation,the following elements including the cause for the advance of fund,the relationship between both parties,intentions and behaviors of both parties after the advance of fund,and the way of repayment of the advance fund,all need to be taken into consideration with regard to "contribution of fund and advance fund".In terms of "business operation and management",the authenticity,effectiveness and independent act of operation in business management and operation need to be examined.In terms of "power for money deal",behavioral factors and subjective factors need to be considered for comprehensive analysis and judgment.While regarding the amount of bribe,repetitive identification and insufficient identification need to be avoided.