On "Seeking An Undue Advantage" In The Offence Of Active Bribery

According to Article 389 of China’s Criminal Law,the establishment of the crime of active bribery is subject to the condition of "seeking an undue advantage",which is the choice of China’s legislature after a careful examination of China’s national conditions and foreign legislation.However,what is "seeking an undue advantage" has been a difficult problem for the theoretical and practical circles.This paper intends to explore this issue in depth,so as to better solve the problems of "maintaining competitive advantage","acceleration fee" and"emotional investment" in practice.This paper is divided into four parts.The first part is the question of whether "seeking an improper advantage" in the crime of bribery exists or not in the legislation.There are three views on the abolition,retention and compromise of "seeking undue advantage".The author argues that "seeking undue advantage"should be retained from four perspectives,namely,from the perspective of crime identification,from the perspective of China’s national conditions,from the perspective of the internal logic of criminal law and from the perspective of the social harm of the crime of bribery should be retained.The second part is the systemic status of "seeking an undue advantage" in the crime of active bribery.Firstly,the theoretical controversy of the systemic status of "seeking an undue advantage" is presented,which is divided into the main element,the objective element,the differentiation and the dual nature.Secondly,we criticize the "objective element theory" and"dual nature theory".Finally,it is argued that "seeking an undue advantage" is the subjective element of the crime of active bribery,while it is the purpose in the sense of criminal law.The third part is the interpretation of the meaning of "seeking an undue advantage" in the crime of active bribery.First,the judicial process of "seeking an undue advantage" is introduced.Secondly,the six doctrines of the current academic community are classified.In terms of interest itself,it is divided into the interest itself theory and the non-interest itself theory.The self-interest criterion theory includes the illegal interest theory,the undeserved interest theory and the indefinite interest theory.The non-interest criterion includes improper means,breach of duty by the bribe-taker,and new breach of duty.The basic proposition of this paper on "seeking improper benefit" is presented.First,the scope of "improper benefit"includes three parts:substantive illegal benefit,procedural illegal benefit,and "uncertain benefit" obtained by improper means.The fourth part is the judicial recognition of the special "bribery" and "seeking an undue advantage" in the crime of active bribery.Under the guidance of the above theory,some difficult issues arising in judicial practice can be solved.In the case of a briber seeking to gain a competitive advantage,the main issue is the maintenance of a competitive advantage.The purpose of the crime should be subjectively identified,the manifestation of "improper advantage" should be objectively distinguished,and finally the quid pro quo relationship between "bribery and breach of duty"should be grasped in essence.In the issue of "acceleration fee" and "accommodation fee",the criminal law nature of "acceleration fee" should be further screened according to the legality of the benefit sought and the bribe-giving and bribe-taking parties.If the matter entrusted to the perpetrator is a legitimate interest,the payment of "acceleration fee" or "accommodation fee" still needs to be divided into two situations:first,the perpetrator does not constitute the crime of bribery if the national staff performs his duties properly;second,the perpetrator does not constitute the crime of bribery if the national staff performs his duties improperly.In the case of improper performance of duties by a state employee,the perpetrator constitutes the crime of active bribery.The bribery of "emotional investment" needs to be considered from the following aspects:First,the purpose of the actor in giving the state employee the property can be considered.Secondly,it can be determined from whether the briber has an interest relationship with the national staff in the position.Third,it can be grasped by the amount of money given by the perpetrator to the state employee.