Research On The Judicial Cognizance Of Bribery In Influence Crime

Article 13 of the Amendment(VII)to the Criminal Law adds the crime of accepting bribes by using influence as one of Article 388 of the Criminal Law,which regulates the acceptance of bribes by "persons close to" the state employees,which connects our criminal legislation with the relevant provisions of the UNCAC and further tightens our criminal law network for punishing bribery.The criminal law network for punishing bribery crimes in China is further tightened.Although the establishment of this crime is of great significance to improve China’s bribery crime system,the crime of using influence to accept bribes has not produced the desired effect in practice,and the indifference and restraint shown by judicial personnel in the application of this crime indicates that there are many problems in the judicial application of this crime.In this article,we will cite cases in practice and address the problems in the determination of this crime from the perspective of judicial practice.The article introduces the significance of this crime in China’s anti-corruption system from the overview and legislative history of the crime of passive bribery by influence.The scope of "close relatives" in this crime should be consistent with the provisions of the Civil Code.The scope of "close relatives" is broad,so it is important to grasp the characteristics and criteria of "close relatives" and compare the difference between this concept and "specific relatives".The concept and scope of "separated state employees" are discussed,and the issue of serving state employees becoming the subject of this crime is explored.In determining whether the perpetrator used his influence,the definition should be based on objective judgment and a combination of ex ante and ex post judgment.The specific meaning of improper interests is discussed,and it is argued that improper interests include interests in substantive violations,interests in procedural violations,and interests sought in violation of the principles of fairness and justice,and the analysis of how anticipatory interests are determined.The scope of "property" is defined in terms of "property interest".In terms of the composition of the crime,there are similarities and significant differences between accepting a bribe by using influence and introducing a bribe,being an accomplice to a bribe,and committing fraud.The main difference between this crime and the crime of introduction of bribery is whether the perpetrator has the intention to take possession of the property sent by the requester.The main difference between this crime and the crime of accepting bribes is whether the state employee has knowledge of the influential person receiving the property and whether there is collusion between the two.The main difference between this crime and the crime of fraud is that the perpetrator has the intention to seek improper benefits for the requester when accepting the property from the requester,and to act to realize the requisition by influencing the state staff to run relations for the requester.