Research On The Nature Of Bribery Interception In Criminal Law

In recent years,the criminal form of bribery crimes has presented a complex and changeful situation,and cases involving interception of bribes by the middlemen have emerged endlessly.By reviewing and sorting out the judgments of cases on China Judgements Online,the author can find that the different courts have different qualifications for bribery interception cases: Most judgements did not separately evaluate the act of bribery interception,but considered that they were subordinate to the introduction of bribery,and thus determined that the perpetrator constituted the crime of introducing bribery and confiscated the illegal possession of the bribery interception.Some judgements identified bribery interception as an accomplice to bribery.A few judgements judged the act as fraud.In theory,there are also views that it should be considered for the crime of encroachment on this kind of behavior,but no public judgment has been searched.There are even opinions that this kind of behavior can only be adjusted by civil law,without the intervention of criminal law.Therefore,there is a big controversy about how the bribery interception should be positively determined.This article will focus on solving this problem.How to determine the case of bribery interception? This article will focus on two aspects: On one hand,in the framework of the existing civil law in China,has the act of bribery interception been adequately evaluated? Is there a need to use the criminal law to strike? On the other hand,if criminal law is needed to combat bribery interception,should we separate the bribery interception from the bribery crime alone?What kind of crime does the middleman constitute? Specifically,the full text is divided into four parts:The first part is an overview of bribery interception.Bribery interception refers to in bribery crimes,After the middleman accepting the entrustment of the briber to transfer the property,the purpose of illegal possession has arisen,so that the property cannot be completely delivered to the state personnel.The act infringes the property of the briber,and is secretive.The author summarizes the bribery interception cases found on China Judgements Online and related theoretical cases.And according to the different status of the middleman,the author divides bribery interception case into two types: the middleman is a hacker or the middleman is a bribery accomplice.The second part discusses if the bribery interception should be criminal punished.The briber delivers the property to the middleman,and the middleman takes possession of the illegal cause.Therefore,payment for illegal reasons in civil law is the logical starting point to explore if the bribery interception should be criminal punished.And whether the bribery interception should be criminal punished is essentially to discuss whether the criminal law protects the rights of the payer in the case of payment for illegal reasons.Payment for illegal reasons refers to the payment breaching laws,regulations or public order,which is a type of unjust enrichment system.Throughout the legislations of various countries in the world,payment for illegal reasons in the civil law essentially will lead to the rejection of the claim of the payer,or the illegal property will be confiscated by the state.In short,the interests of unreasonable payers are not protected in civil law.Then,does the criminal law certainly fail to protect property that is not protected by civil law? The author believes that if only the civil law evaluation of the bribery interception is carried out,and the criminal law is not used to protect the interests of the payer,the middleman will not be punished for profits acquired by bribery interception and can occupy the property based on payment for illegal reasons in the civil law.But occupying this property breaches fair custom.The evaluation of the criminal law itself should be independent.Whether the crime is established or not should be judged independently by the criminal law after examining the behavior of the perpetrator,rather than based on the civil legal relationship.At the same time,there are many practical necessities to use the criminal law to strike bribery interception.Therefore,the act of bribery interception has criminal penalties.The third part elaborates the controversy of the criminal law evaluation of bribery interception.The author summarizes four major disputes in the criminal law evaluation of bribery interception from the perspective of theory and judicial recognition in China and abroad.First,whether bribery interception constitutes crime.The reason for this controversy is mainly due to adopting different legal interest protection theory of property crimes.If adopting the legal property theory,it is considered that the property intercepted by the middleman has no legitimate source of rights in the civil law,and the criminal law naturally does not protect the property.So bribery interception does not constitute a crime in criminal law.If adopting economic property theory,it is considered that the property intercepted by the middleman is economically valuable,and the interception of property destroys the stable property order,and bribery interception is criminalized in criminal law.Second,there is a dispute whether intercepted property is protected by criminal law in China.In the legislative and judicial interpretation of criminal law in China,they choose different legal protection positions for property crimes.Articles 91 and 92 of the Criminal Law have chosen legal property theory,while the judicial interpretation of property crimes has chosen economic property theory.Illegal property is also protected by judicial interpretation.The choice of different positions is not the same as the answer to whether there is a criminal law interest in the object of bribery interception.The author believes that from the perspective of maintaining the basic property order,it should be considered that the object of bribery interception has the legal benefits of criminal law and deserves to be protected by criminal law.Third,there are different views on the different criminal law evaluations of bribery interception in theory and practice in China.China's criminal law evaluation of bribery interception has two viewpoints: no separate evaluation and separate evaluation.No separate theory commented that the bribery interception only constitutes relevant bribery crimes,that is,the middlemen's bribery interception is absorbed by the bribery crimes in which they participate,and there is no need for separate evaluation.The separate theory commented that the bribery interception undermines the normal property order and is completely different from the legal benefits of bribery crimes.For the criminal law evaluation of the middleman,it is necessary to first examine the property crimes constituted by the middleman,and then combine the role he played in the bribery crime to determine the crime of bribery crime,and then impose several crimes.Fourth,the differences in the path of interpretation of foreign bribery interception cases.The author selects Germany,Japan,and the United States as research models to examine the differences between the three countries in terms of the nature of bribery interception.The fourth part solves the qualitative problem of bribery interception The premise of the determination of the bribery interception of a middleman is to accurately define the nature of the briber's delivery of property to the middleman and the nature of the property when the middleman receives the property for bribery.First of all,the principal giving the trustee the property can be divided into commissioning for illegal reasons and illegal reasons for payment according to whether the illegal delivery has a final distinction.The two will have a greater impact on the nature of the middlemen' s bribery interception.In the case of commissioning for illegal reasons,because the middleman needs to transfer the property to the specific state personnel according to the principal's entrustment,then the principal 's delivery of property to the middleman is not a final increase in the property of the middleman,and thus the ownership of the property at this time is still to the principal,so the middleman constitutes the crime of embezzlement.In the case of payment for illegal reasons,since the principal does not specify the specified state personnel when delivering the property to the middleman,the specified state personnel needs to be searched by the middleman,and the principal has to deliver the property to the middleman.At this point,it should be considered that the ownership of the property has been transferred to the middleman by the principal,and the middleman intercepts the property naturally without the possibility of constituting a crime of embezzlement.Secondly,the author believes that whether it is commissioning for illegal reasons or payment for illegal reasons,because the briber is deliberately transferring the property to the middleman for bribery,and the briber's behavior has satisfied the constituent elements of the bribery preparatory act,when the trustee receives the property of bribery,the nature of the property is already a bribe,that is,the instrumental property of the crime,which should eventually be confiscated.Finally,the author puts forward qualitative and opinions on the classification of bribery behaviors made in the first part.In the case where the middleman does not transfer the possession to the state personnel and the middleman asks the briber bribe again,the middleman uses the fictional facts to make the briber believe that the middleman can help him to complete the bribe and seek illegitimate interests,then the briber delivers property to the middleman,and the briber is subject to property damage.At this time,the middleman constitutes a crime of fraud.In the case where the middleman does not transfer the bribe to the state personnel but confesses the transfer to the briber,the bribe is refused by state personnel,and middleman transfers part of the bribe to state personnel,the middleman takes the possession of the bribe as its own and shall be determined crime of encroachment.When a middleman uses the convenience of his position to intercept the bribes received by the unit,if the middleman has the status of a national staff member,it may constitute a crime of corruption.When a middleman acts as an accomplice in bribery,he may not be generalized about what kind of crimes he constitutes,and should be determined according to the amount of bribes he intercepts.When a middleman acts as an accomplice in accepting bribes,his bribery interception has been absorbed by the act of accepting bribes.He can be punished for accepting bribes.Also,we need consider the amount of bribes he accepted.At the same time,for the above situation,we also need to consider if the middleman implements the introduction of bribery and examine the number of crimes of the middleman.