Judicial Qualitative Research On "Overcharge And Less Delivery" Bribery Interception Behavior ——From The Perspective Of Three Typical Cases

In recent years,in the bribery cases tried by the court,in the process of setting up the bribery crime between the briber and a third party other than the briber,as an intermediary,without the briber’s knowledge,it frequently happens that the briber privately intercepts the bribes for the purpose of illegal possession.Due to the lag of the law itself,this kind of illegal situation has not been clearly defined,which makes different courts give very different treatment results for similar situations when trying cases of bribery interception.Some judgments did not give criminal law evaluation to the actor’s behavior of intercepting bribes,and considered that the behavior was regulated by civil law,so only the money withheld privately was confiscated as illegal income;Some judges did not evaluate the interception behavior in bribery interception separately,but put it in bribery crime as one of the circumstances of introducing bribery crime or establishing the crime of accepting bribes;In some judgments,interception and bribery were evaluated as property crimes and bribery crimes respectively,and finally several crimes were punished together.The theoretical circles have different views on this issue.Therefore,there is an urgent need for accurate judicial characterization of middlemen’s behavior of introducing and intercepting bribes,deepening the anti-corruption struggle and improving judicial credibility.The types of bribery interception are complex,with more than 20 kinds.This paper focuses on the judicial characterization of the most frequent type of bribery interception in practice,selects three cases of "receiving more and sending less",and draws the conclusion of legal regulation and judicial application of sample cases on the basis of legal analysis of the relevant disputes,and puts forward some suggestions for improvement..Specifically,this paper consists of four parts:The first part introduces the basic case and summarizes the controversial focus.This paper selects three cases of bribery interception with similar cases but different judgments in China Judgment Document Network,and concludes three controversial focuses: First,whether bribery interception is punishable by criminal law;Second,whether interception behavior in bribery interception should be evaluated separately;Third,how to convict the act of matchmaking and transfer in bribery interception.In the second part,the legal analysis is made for the above three controversial points.First of all,the concept and nature of "overcharge and give less" bribery interception behavior are clarified.Secondly,it makes a legal analysis on whether bribery interception is punishable by criminal law,and sorts out three theories of qualitative disputes in criminal law.Then,in the jurisprudential analysis of the criminal penalty of interception behavior in the type of "overcharge but give less" bribery interception,the differences between independent identification and non-independent identification in practical and theoretical circles are summarized,and the conditions of independent identification behavior are analyzed.Finally,on the issue of how to convict the act of matchmaking and transfer in "overcharge but give less" bribery interception,the legal basis of introducing bribery crime,bribery or accomplice of accepting bribes is expounded respectively.The third part gives the conclusions and suggestions of the case study.This paper holds that the bribery interception behavior of "overcharge and less delivery" is punishable by criminal law,and the bribery interception behavior should be separately evaluated as a property crime.Conviction and punishment conclusion of "overcharge and less delivery" type of bribery interception: In "overcharge" type of bribery interception,whether the actor is an accomplice of bribery or bribery crime,it violates two different legal interests.Therefore,the two behaviors of bribery interception and matchmaking transfer are characterized respectively,and the crime of fraud is combined with the crime of bribery or bribery.In the "less delivery" type of bribery interception,if the actor is an accomplice of bribery,the two acts infringe two different legal interests,and the crime of embezzlement and bribery will be punished together;If the actor is an accomplice of accepting bribes,intercepting bribes is regarded as the bribe-taker’s domination of bribes,and the crime of accepting bribes is established.Finally,in the part of case study suggestions,it is suggested that judicial interpretations should be issued to restrict the introduction of bribery crimes,guiding cases should be issued in order to unify the judgment standards,and the ways of public prosecution and prosecution for embezzlement of entrusted property based on illegal reasons should be increased,so as to make accurate and unified judicial characterization of "overpayment and less delivery" bribery interception in practice as much as possible,and achieve a balance between crime and punishment.