| In China’s criminal law,many provisions on bribery crime concern the act of "seeking illicit interests".Therefore,it is important to give an accurate identification of it so as to maintain the strictness of the legal network of bribery crime and as well as keep the progress of China’s anti-corruption cause.Currently,however,"seeking illicit interests" remains a controversial concept both in theory and practice,so it is necessary to carefully sort it out."Seeking illicit interests" consists of two parts:"seeking"and“illicit interests"."Seeking" means trying to obtain,which can be classified into primitive type(the primitive accumulation of illicit interests),maintaining type(the maintenance of acquired illicit interests),and expansional type(the expansion of acquired illicit interests).The phrase"illicit interests" can be both understood as interests that are illicit and the illicit means of seeking interests.The overall identification process of "seeking illicit interests" is to first divide the interests sought by the actor into competitive interests,predetermined interests and non-predetermined interests.The identification rules are:in the case of seeking predetermined interests,the act of giving property will not be considered as"seeking illicit interests";in the case of seeking competitive and non-predeterm ined interests,the act of giving property will be found as "seeking illicit interests".Therefore,"seeking illicit interests" is an act of obtaining and maintaining competitive interests or non-predeterm ined interests by illegal and unreasonable means.Theorists have different opinions on whether the act of "seeking illicit interests" counts as a constitutive element of bribery crime and have divided into two sides:people with affirmative opinions and negative opinions.The act of "seeking illicit interests" is a constitutive element of bribery crime.It is believed that the act of "seeking illicit interests"not only meets the requirement of the legal interests of bribery crime,but also bears the dual values of revealing the nature of pursuing profits as well as limiting the attack scope of bribery crime.Therefore,"seeking illicit interests" is an irreplaceable constituent element of bribery crime.If viewed in combination with the relevant judicial interpretation in 2012,there are two types of "seeking illicit interests" in bribery crime:one that violates regulatory documents and the other that runs counter to the principle of fairness and justice.In the first case,attention should be paid to the judgment of policy and industry norms.Policies are documents formulated by the central and local governments as well as by the party and the government.There are three types of industry norms:those formulated or authorized by state organs,those formulated by the national industry association whose usage is approved by relevant legislatures,as well as rules of self-regulations that that are binding only on those who voluntarily join the association.In the second case,the field of competition includes activities like economic activities and the management of the personnel of organizations.Meanwhile.the act of maintaining competitive advantage can also be considered as seeking competitive advantage.In practice,there are bribery crimes in which the relationship between power and money is blurred,such as emotional investment and facilitation payments,which brings difficulties to the identification of "seeking illicit interests".Emotional investment distinguishes from socializing in that it lacks an expectation of returns based on the social norms in terms of interpersonal relationships.When analyzing the emotional investment bribery crime in judicial practice,we should combine the connotation and types of seeking illicit interests.The identification of facilitation payments shall be based on the standard of promoting the legitimate performance of duties by public officials.Paying facilitation payments for public officials’ legitimate performance of their duties should not be considered as "seeking illicit interests".Since the payer of facilitation payments is to seek predetermined interests,and the payer is essentially a victim,its behavior of paying facilitation payments should not be regarded as "seeking illicit interests". |
