On The Judicial Determination Of The "Improper Benefit" In The Bribery Crime In China

Article 389 of the "Criminal Law" of China stipulates that "seeking improper interests" as a constituent element of the crime of bribery.The issue of "interests" retention has become the focus of controversy in the theoretical and judicial circles.Therefore,the accurate definition of "improper interests" is of great significance to the determination of bribery.From the perspective of the legislation on "improper interests",only the judicial interpretations issued by the "two higher authorities" in 2013 and 2016 have made specific provisions on "improper interests".Moreover,these regulations distinguish between the attributes of "improper interests" : First,the entity violates the law,that is,the interests themselves violate laws,regulations,rules,and policies.This situation can also be called illegal interests;second,Illegal procedures,that is,to require national staff to violate the provisions of laws,regulations,rules,policies,and industry norms,and obtain benefits through abnormal channels and procedures to provide themselves with help or convenience.In the academic circle,the following views are mainly formed in the disputes over "improper interests" : first,the theory of illegal interests,that is,the interests that are not allowed to be obtained by law;Second,the theory of undeserved benefits,which covers illegal interests and other undeserved interests;Third,the theory of improper means holds that "improper interests" refers to the means,methods and methods adopted by the actor when he obtains the interests he asks for.Fourth,the doctrine of violation of duty,which holds that the determination of "improper interests" should be limited to whether it violates the requirements of duty regulations to take the briber as the briber to seek benefits;Fifth,uncertain benefits refer to the benefits that any person who meets the requirements may obtain by lawful and proper means but is still in an uncertain state according to the provisions of laws,regulations and policies.The sixth is the eclectic view,which holds that "illegitimate interests" include illegal interests,the interests gained from the doer's inaction and the uncertain interests obtained through improper means.There are two main problems in the determination of "improper interests" in the judicial practice field.The first is that there is ambiguity in judicial determination of "improper interests".Because there is still no uniform standardfor the identification of "unfair interests",different judicial practice departments will have different results in their identification according to different regulations.The second is to simplify the process of identifying "improper interests." Finding some relevant cases on the Chinese Judgment Documents Network found that in the trial of bribery cases,although the court found that the suspect constituted a bribery crime,why was the benefit sought as “improper interest” deemed “improper” "Interests",which kind of interest belongs to "improper interests" and other issues are often carried over in the judgment documents.Difficult problems in judicial practice mainly focus on the identification of "acceleration fees","facilitation fees","seeking competitive advantage",and "emotional investment".In order to obtain legal benefits and urge state officials to perform their duties as soon as possible,the perpetrators are granted "acceleration fees" and "accommodation fees",and the crime of bribery is difficult to accept by the public.The link between “ seeking competitive advantage ” and seeking uncertain interests has achieved the transformation from uncertain interests to illegitimate interests.Judicial determination of seeking competitive advantage should be limited to a specific competitive field and a specific period of time.For bribery in order to maintain competitive advantage,bribery should also be used to obtain competitive advantage."Emotional investment" grants personal equality and reciprocity and has nothing to do with the duties of state staff,and the gifts between the two parties are in a state of finger balance,which can be regarded as normal human relations.In judicial practice,to resolve disputes over the determination of "improper interests," the judgment of an actor's request should be linked to the position of a state official.The cause of the perpetrator's entrust is illegal,and it is also "improper interest".If the perpetrator is seeking a legitimate interest and the convenience and assistance provided by the state staff does not violate the job requirements,it will not constitute a bribery crime,otherwise,it is a crime of bribery.