Judicial Determination Of "seeking Illegitimate Benefits" In The Crime Of Bribery

Article 389 of Criminal Law of the People's Republic of China clearly stipulates "obtaining improper benefits" as the subjective constitutive elements of the crime of bribery.However,because the Criminal Law does not make clear the definition of "improper benefits",there are many controversies about its scope and identification standards in theoretical and practical circles.In order to solve the identification problem in practice,since 1999,the Supreme People's Court and the Supreme People's Procuratorate have issued a number of judicial interpretations to explain "seeking illegitimate benefits".However,because of the generality of its provisions and the complexity of social communication activities,these problems cannot be solved,and no unified conclusion has been formed so far.The disunity of the identification and application standards of "seeking illegitimate benefits" has become a major obstacle to the promotion of judicial work.Judicial interpretations issued by the Supreme People's Court and the Supreme People's Procuratorate divide "illegitimate interests" into two categories: one is to "seek improper benefits from laws,regulations,rules,policies and industry norms",the other is "competitive advantage gained by violating the principles of fairness and justice".But it does not specify the scope of "regulations,policies,industry norms" and "the pursuit of competitive advantage".In this paper,in addition to analyzing and discussing the different viewpoints of scholars in the theoretical circle on the preservation,abolition and identification of "seeking illegitimate interests",the author also analyzed the "private gain" on the basis of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Bribery Cases issued in 2012.And the author elaborated and put forward views on two special bribery behaviors,namely "after-event reward" and "emotional investment",which often occur in judicial practice and are highly controversial."Ex post reward" does not need to be agreed in advance,as long as it is an active reward,it should be determined that there is a subjective purpose of "seeking illegitimate benefits".To identify "emotional investment",it is necessary to distinguish between "emotional investment" bribery and "normal human relations" in terms of the relationship between the two parties,the amount of delivery and the actor's motivation.In the end,this article discusses the main points that need to be paid attention to when defining "seeking illegitimate benefits",hoping to be helpful to the determination of "seeking illegitimate benefits" in judicial and judicial practice.