| Since the 1997 "Criminal Law of People’s Republic of China" clearly stipulated the mediate bribery crime in Article 388,the criminal law academia has never stopped discussing this provision.In general,the topics of the discussion were focused on the comparative study of the mediate bribery crime and other bribery crimes,the independence of the mediate bribery and the complication of the legislation mode.Microscopically,they focused on the judgment of the duty elements and the interests elements.However,these theoretical studies have not established a judgment standard system that can accurately guide judicial practice.With the times,the manifestations and criminal means of bribery crimes are becoming more diversified.It is frequent that the national staff choosing good offices to promote the realization of bribery crimes.Although the relevant legislation and regulations on bribery crimes are gradually improving,they are far from matching the needs of current judicial practice.This article takes the real cases of judicial practice as the starting point for thinking,discusses the difficulties of theoretical research and the judicial identification on the mediate bribery crime,and is divided into five parts.On the basis of combing the basic problems such as the legislative evolution and the connotation of the mediate bribery crime,and the current research status of its legal interest,starting from the characteristics of mediate bribery and the commonality with general bribery,it can be inferred that the essence of this crime is to prevent the infringement of the fairness of duty behavior.And use this legal interest to solve the problems of distinguishing the duty elements,interests elements and determining the complete form of the mediate bribery crime.How to determine the duty elements of the mediate bribery crime has been a hot topic in the criminal law academia for a long time.Only by clarifying that the duty elements is indirect and non-restrictive duty influence,can accurately clear the upper and lower limits of this influence,and distinguish other confusing bribery crimes by tracing the source of the influence,to solve the identification dilemma of judging the situation of the mediator transferring from the original post,private and duty relationship concurrence in judicial practice.The interests elements is important and a controversy flashpoint for scholars.It is limited that judge the impropriety by the nature of itself and the way in which it is obtained.Therefore,change the mind to base on the perspective of legal interest that the influence on duty fairness as an objective factor for judging whether it is an improper interest is helpful to respond to the debate about accelerating performance results and competitive advantage.After clarifying the controversy on the elements of the mediate bribery crime from a local view,the complete form of crime can be determined from a global view.The first task is to determine the standard of accomplishment.However,the existing theories all deviate from the special behavior pattern of the mediate bribery crime,and different types are completed at different times.Therefore,it is necessary to discuss the solicitation and acceptance mediate bribery crimes on the basis of categorization,and optimize the accomplishment standard into a composite form of the completion of the solicitation behavior and the mediation behavior.So as to determine the accomplishment of mediate bribery crime in special circumstances such as returning or handing in bribes before filing the case,as well as the mediated rejecting or failing to seek improper interests.Although the legislature and the judiciary have tried to meet the needs of difficulties in theory and practice through the criminal law amendments and judicial interpretations,there are still many problems such as legislative vagueness and incompleteness.Only by basing on the national conditions of our country,actively integrating with international criminal law,convicting the mediate bribery crime independently and separating sentencing standards,can we solve the problems of low application rate and omission of the application of the mediate bribery crime from the source.At the same time,further improving the crimes,retain and refine the interests elements of improper interests to balance crimes and penalties.When dealing with the changes in new bribery crimes,we should recognize the nature of bribery crimes and gradually expand the scope of the bribery to improper interests to adapt to the anti-corruption environment at home and abroad. |
