On "Seeking Unfair Benefits" In The Crime Of Bribery

Article 389 of China’s Criminal Law defines "seeking an undue advantage" as a condition for the criminalisation of active bribery,and numerous judicial interpretations have been issued by the judicial authorities to define its meaning,while the theoretical community has also formed the "illegal advantage theory" based on the research results of the criminal law provisions,judicial interpretations and judicial practice.These doctrines have greatly enriched the "unlawful interest" doctrine and the "violation of position" doctrine.While these doctrines have greatly enriched the meaning of "improper interest",they have also brought confusion to judicial practice,which has led to inconsistent standards in judicial practice.This article attempts to explore the legal status of "seeking an improper advantage" in the offence of active bribery and to determine the connotation of "improper advantage" on this basis,with a view to providing a basis for the judicial determination of "improper advantage" and criminal liability for active bribery.The legal status of "undue advantage" in the context of the offence of active bribery is determined on this basis,with a view to providing solid recommendations for the judicial determination of "undue advantage" and the determination of criminal liability for active bribery.The main sections are as follows.The first part is devoted to the current judicial situation and theoretical controversies regarding the "improper advantage" in the offence of active bribery in judicial decisions.Typical cases are examined,and the problems in judicial decisions include the ambiguous and weakened process of identification,the lack of uniformity in the criteria for identification,and the failure to distinguish between active and passive bribery.The difficulties in identifying "acceleration fees","competitive advantage","emotional investment" and "gratuity afterwards" are examined.The academic and judicial communities are divided on these issues and have not reached a unified view.The "unlawful interest" theory is that the source of the "improper interest" is the violation of the law.The "breach of duty" theory argues that the "improper interest" arises from the violation of the requirements of the office by the state employee,while the "improper means" theory argues that "All these doctrines interpret the meaning of "improper interest" in a positive way,exploring what improper interest is and its nature,and explaining it from various angles,in order to explore The source of the "improper advantage" is considered to be the lack of clarity as to the legal status of "improper advantage" in the offence of active bribery.Part Ⅱ examines the status of "improper advantage" in the context of the offence of active bribery.This part explores the legal status of "seeking an undue advantage" in the offence of active bribery,arguing that "seeking an undue advantage" is neither an element of illegality nor an element of liability in the offence of active bribery,but rather a condition for its inclusion in the offence of active bribery due to realistic criminal policy considerations.The impropriety of the means of bribery has the effect of making it an offence.The improper nature of the means of bribery is "contaminating" and will "pollute" the benefit obtained through that means.The law usually judges the degree of infringement of the legal benefit of the act of bribery and the degree of culpability for the act of bribery by the amount of the bribe offered.Only the "legitimate interest" can prevent the contamination of the improper means of bribery;both the "neutral interest,which cannot be evaluated for legitimacy" and the "improper interest" are subject to the "improper interest".The "impropriety of the means of bribery" contaminates these interests,making them "improper".If the benefit itself is "improper" because it violates other laws such as the Customs Act,this will magnify the culpability of the briber and increase his criminal liability for the offence of bribery.A "neutral,non-evaluable interest" does not magnify or diminish the criminal liability of the briber for the act of bribery.This is the basis for the "improved improper means" argument.This view endorses the basic position of the "improper means theory" that the improper means of bribery will render the benefit sought improper,while arguing that if the benefit sought by the briber is a legitimate benefit,then the legitimacy of that benefit will prevent the impropriety resulting from the bribery.The third part is the specific determination of "for an improper advantage"based on the "improved means of impropriety".This section applies the Improved Means Doctrine to judicial cases.The "improved means of impropriety" approach is used to analyse the determination of "procedural benefit","competitive advantage","reward after the fact" and "emotional investment"."If the benefit sought by the bribe-giver is a legitimate benefit that he or she deserves,the bribe is not a bribe because the bribe is not tainted by the act.If the benefit sought is a"neutral benefit whose legitimacy cannot be evaluated" or an "improper benefit that violates laws,regulations,requirements of office or other normative requirements",then the contamination of the act of bribery is not prevented and the offence of bribery is committed.The offence of active bribery is not precluded.