| The retention of bribes by an intermediary refers to the act of an intermediary who,knowing that the purpose of the property delivered to him or her is to help him or her in the bribery process,nevertheless agrees to or helps him or her in the transfer of the property and,in the process,retains some or all of the property for his or her own benefit.In recent years,judicial practice has dealt with this conduct in different ways,ranging from advocating that the retention of bribes be treated as innocent or not separately criminalised,to evaluating the conduct as fraud or misappropriation.Up to now,there is considerable controversy in both practical and theoretical circles as to the characterisation of the retention of bribes,and no unified standard of judgement has been formed.The reasons for this are not only the lack of corresponding legal provisions in our criminal law,but also the diversity of the act of intercepting and retaining bribes.Therefore,this article intends to deconstruct the act and analyse the selection of the offence and the clarification of the boundary between the act and the complicity in the offence of bribery.The first chapter of this paper analyses the need for criminal law regulation and the qualitative dilemma of criminal law.In judicial practice,there are few cases in which the retention of bribes by intermediaries is regulated by the civil law system of unjust enrichment,but the legal consequence of using unjust enrichment to regulate this behaviour would be that the intermediary would return the property to the briber,which is clearly contrary to the legal expectations of citizens,and therefore the issue should not be evaluated in civil law,rather it would be more effective to use criminal law to regulate such behaviour.The analysis of selected typical cases of judicial practice shows that there are three main dilemmas in the application of criminal law to the interception of bribes by intermediaries: the unclear legal characterisation of the act of interception of bribes by intermediaries,the difficulty of defining the offence of interception of bribes by intermediaries,and the unclear criteria for defining the complicity of the act of interception of bribes by intermediaries and the offence of bribery.Chapter 2 focuses on the characterisation of the act of interception of bribes by an intermediary.Firstly,the premise of the determination of the retention of bribes is controversial,as it relates to the legal nature of the delivery by the bribe payer and the legal nature of the money intercepted.The distinction between payment and commission is denied in Japanese civil law,but there is a clear objective difference between criminal law and civil law,so this article proposes to adopt a "distinction theory" to distinguish between the two and determine that the act of interception by an intermediary is an act of commission for a wrongful reason.In the context of wrongful entrustment,the bribe-giver’s entrustment relationship is evaluated negatively,but the bribe-giver can still enjoy the right of return in civil law.This paper adopts the economic property view that the intercepted bribe has a protected value and proposes that the nature of the intercepted money be determined using the point at which the offence of bribery commences.In addition,this article deconstructs the act of retaining bribe money and,in response to the ambiguity between the act of failure to transfer property by an intermediary and fraudulent means,proposes that the fulfilment of the victim’s purpose in disposing of the property be used as a criterion for determining whether the failure to transfer should be considered fraudulent.Chapter 3 focuses on the analysis of the choice of offence.Firstly,in view of the fact that the act of an intermediary retaining bribes is often considered as the offence of bribery by introduction in judicial practice,this article analyses the limitations of the application of this offence from two aspects,and concludes that this act should not be evaluated by the offence of bribery by introduction.Secondly,this paper analyses the controversies surrounding the offence of misappropriation and,on the premise that the legal interest protected by the offence of misappropriation is the right to return and that payments made for wrongful reasons can be the subject of misappropriation,confirms the feasibility of applying the offence of misappropriation to the retention of bribes by intermediaries under certain circumstances.This paper therefore recommends that the criminal law regime for this conduct should not apply to the inclusive assessment of the bribery offence and that a typology of sanctions should be applied to regulate this conduct by the offence of misappropriation.Chapter 4 focuses on the analysis of the problem of clarifying the problem of complicity.This chapter looks at the subjective will and objective conduct of the intermediary to determine that the retention of bribes by the intermediary should not fall within the scope of the offence of facilitation of bribery,as the subjective will of the intermediary does not satisfy the "pursuit" requirement of complicity in bribery,while the objective conduct of the intermediary does not satisfy the "global nature" and the manner in which the act of complicity in bribery occurs.The objective level does not meet the "global" and "biased" nature of the act itself.The theoretical analysis thereafter rejects the possibility of the act being established as an instigation to commit the offence of active bribery and,at the end of the chapter,proposes two criteria for determining the boundary between the act of interception and complicity,one being the independence of the actor’s position and the other being the element of "seeking an improper advantage" as a rule of judgement. |
