Criminal law reference papers

Fourthly, explore the countermeasures to improve the law of bribery crime in China.

(1) Abolish the provision of "seeking benefits for others".

The author thinks that the provision of "seeking benefits for others" in the objective elements of the crime of accepting bribes in criminal law should be abolished, which makes the theory of criminal law controversial and brings many difficulties to judicial practice. Abolishing this clause has at least the following advantages:

1. It is in line with the essence of the crime of accepting bribes to cancel the provision of "seeking benefits for others"

The essential feature of crime is social harmfulness, which is the general theory of criminal law in China. Any crime can be described by many facts, but not every fact is an important element of a crime. Only those facts that play a decisive role in the harmfulness and degree of society are the constitutive elements of crime, which can reflect the essential characteristics of crime and achieve the unity of form and content. [1] The harm or essence of bribery lies not in seeking benefits for others, but in bribery itself. [2] Therefore, the object of the crime of accepting bribes is the integrity of duty behavior, which harms the integrity and has the essential characteristics of the crime of accepting bribes and can constitute the crime of accepting bribes. As for whether there is a promise or behavior of "seeking benefits for others", the social harmfulness of this behavior cannot be identified or ruled out, only the degree of social harmfulness is different. Whether seeking benefits for others or not, the actor's bribery has violated the criminal object. Considering the nature of the crime, this behavior constitutes a crime of accepting bribes and does not need to have the element of "seeking benefits for others". Therefore, the abolition of the provision of "seeking benefits for others" conforms to the essential requirements of the crime of accepting bribes and makes the legislation more concise.

2. Abolishing the provision of "seeking benefits for others" reflects the requirements of legislative purposes.

From the original intention of bribery legislation, public officials should be investigated for criminal responsibility for taking bribes by taking advantage of their powers, because the purpose of bribery is to prevent the alienation of power and the violation of the integrity of their posts. However, China's current legislation believes that the crime of accepting bribes cannot be determined by this alone, and it is necessary to have the elements of "seeking benefits for others". Obviously, this provision of legislation can not achieve the legislative purpose well, which is not conducive to the realization of the legislative purpose. Judging from the current policy, this provision does not conform to the basic spirit of "strictly administering the party" and "strictly administering officials", and it does not meet the requirements of the people. Only by canceling this requirement can we straighten out these relations and realize the unity of theory and practice.

The abolition of the provision of "seeking benefits for others" does not mean that the existence and function of this factor are ignored in legislation. As we all know, the degree of social harmfulness of behavior is the main basis of penalty setting, and the degree of social harmfulness of the actor depends not only on the objective harm to society, but also on the subjective malignancy of the actor. This paper suggests that the provision of "seeking benefits for others" be abolished, not to ignore the factor of "seeking benefits for others" in legislation. Public officials who accept bribes seek "legitimate interests" for others according to national laws and regulations, and the benefits that the counterpart should get can be realized without violating his position, but only infringing on the integrity of his position. "Seeking illegal benefits for others" refers to the benefits that the counterpart should not get according to the national laws. In order to realize the interests of the counterpart, public officials who accept bribes will inevitably violate their duties, make the actors violate the integrity of their duties and undermine the normal management order of their duties, and their actions are more harmful to society and subjective malignancy than the former. This is the requirement of the principle of suiting crime to punishment, and it is also a common practice in the world. For example, in the criminal law of the United States, the crime of accepting bribes is divided into light bribery and heavy bribery, and its dividing standard is whether there is "intentional bending of the law", which is similar to "seeking illegitimate interests for others" in China. If there is "intentional bending of the law", it belongs to the crime of heavy bribery, and its penalty setting is obviously heavier than the crime of light bribery without intentional bending of the law. [③]

3. Abolishing the rule of "seeking benefits for others" is conducive to cracking down on bribery.

Judging from the judicial practice, the abolition of this provision can make the legal net more rigorous, so that those corrupt elements who accept bribes and do not seek benefits for others cannot escape the sanctions. At the same time, the abolition of this provision can alleviate the difficulties of judicial organs in proving the elements of seeking benefits for others and the causal relationship between accepting property from others and seeking benefits for others, which is conducive to strengthening the work of cracking down on bribery crimes.

Some people worry that canceling this requirement will confuse the boundary between the crime of accepting bribes and the crime of giving gifts to relatives and friends, which may lead to an expansion of the scope of the crackdown. In fact, this kind of worry is unnecessary. In the final analysis, bribery is based on the restriction of public officials' power and is a derivative of power. Therefore, gifts between relatives and friends are completely different from the crime of accepting bribes, both in reason and amount.

(B) The content of bribery is extended to "illegitimate interests"

The author suggests that "illegitimate interests" should be used instead of "property" in the provisions of bribery in China's criminal law. The extension of the word "property" is very narrow, and its shortcomings have been explained before. Improper interests, including both material interests such as property and intangible interests, have been discussed above and will not be repeated here. It is suggested to replace "property" with "illegitimate interests", with the following meanings:

1. Expanding the content of the crime of accepting bribes to "illegitimate interests" is more in line with the essence of the crime of accepting bribes.

From the essence of the crime of accepting bribes, intangible interests, like material interests, are interests that can meet people's needs. Accepting material benefits, like intangible benefits, will infringe on the integrity of public officials' behavior. Moreover, the development of "power and money transaction" to "power transaction" is a new feature of current crime and a concrete manifestation of the innovation of criminal means. As mentioned earlier, the international common practice represented by the Convention extends "bribery" to "all illegitimate interests", which is what China has adopted.

It not only conforms to the requirements of international obligations, but also conforms to the requirements of further deepening the anti-corruption struggle, and also conforms to the criminal essence of bribery. Bribery is a crime of abusing power for personal gain, and its essence is the violation of the integrity of public officials' duty behavior. No doubt, taking advantage of his position, whether accepting or demanding property or other illegitimate interests, all state functionaries violate the integrity of their duties, and their social harmfulness is the same in essence. In the real life where people's needs and desires are diversified, whether it is property or other improper interests, they can meet the psychological, physical, material or spiritual needs of those who abuse power for personal gain. If we crack down on bribery on the one hand and limit bribery to property or property interests on the other, we will indulge in crime. Therefore, it is completely in line with the essence of the crime of accepting bribes to stipulate that public officials take advantage of their positions to seek property interests or non-property interests. It is precisely because other property interests or other illegitimate interests besides accepting property can also reflect the essence and harmfulness of bribery, so it is reasonable to include it in the scope of bribery.

2. Expanding the content of bribery crime to "illegitimate interests" can make the legislation more scientific.

From the legislative point of view, what kind of behavior is defined as a crime and brought into criminal law regulation depends on many factors such as objectivity, necessity and feasibility of punishment. The so-called "objective" means that this kind of behavior that harms society must be an objective phenomenon in real life, or although it does not exist at present, it does exist in the process of social development according to scientific prediction. If the reality does not exist, it is impossible to appear in the future, and the existing laws

There is no need to make provisions. With the continuous advancement of China's market economy, the content of bribery is no longer limited to property. The phenomenon that public officials accept public money travel, pornographic consumption and other disguised forms of "sex trading" appears constantly, resulting in a special class of "sex trading", which has caused extremely bad influence in society. If this phenomenon is not punished by criminal law, it will undermine the seriousness of the law. [④]

The so-called "necessity" refers to objective behavior, whose social harmfulness has reached a certain level, and it must be regulated by punishment, otherwise it will not be enough to prevent, punish and contain, and the current criminal law is not applicable, so it should be considered in legislation and incorporated into criminal law provisions. At present, China is in the period of system transition, and the legal system needs to be improved urgently. Black-box operation generally exists in all fields, especially in administrative and economic fields, which provides a solid soil for corruption and bribery crimes. Although China has intensified its anti-corruption efforts at present, corruption and bribery have been repeatedly banned. Judging from the judicial practice, even the leaders who are investigated in the same place have the phenomenon of "one after another", and the amount of corruption is still rising. The root of this phenomenon is that "there are policies at the top and countermeasures at the bottom". Asking for or accepting "property" will be punished, and bribes other than property are considered justified. People's needs are not a single item. The temporary satisfaction of material interests may in turn prompt the actor to crave more materials to satisfy the previous non-material enjoyment again and again. Material interests and non-material interests overlap and snowball in corruption and bribery crimes. Therefore, it is necessary to amend the unreasonable provisions in the current criminal law and expand the scope of the crime of accepting bribes to "illegitimate interests", including all property and non-property interests.

The so-called "feasibility" means that it is possible to apply criminal punishment to punish bribery in judicial practice. As a bribe, the interest is objective and true, which may and can be specifically identified in judicial practice. No matter how the connotation of bribery changes, one thing can be regarded as a bribe-whether it is material interest, material interest or intangible interest, it must have practical characteristics. On the one hand, it can meet the material, spiritual or other requirements of the briber, on the other hand, it can also exchange some benefits for the briber. From these two points of view, judging whether to accept bribes in judicial practice is highly operational. [⑤]

(3) Establish an independent statutory penalty for accepting bribes, and reasonably determine the position of "amount" in the penalty for accepting bribes.

There is no independent statutory punishment for bribery in the current criminal law. Article 386 of the Criminal Law stipulates that those who pay bribes shall be punished according to the legal punishment of corruption according to the proceeds and circumstances of bribery. The author thinks that this kind of legislation is unscientific. The crime of accepting bribes is different from the crime of corruption in behavior characteristics and protection of interests, and there should be an independent statutory penalty that can correctly reflect the harm of behavior. Corruption and bribery are essentially different. The crime of corruption must violate the ownership of property, and the amount of illegal possession of property can measure its harmfulness. "Counting stolen goods, conviction and sentencing" has its rationality and legitimacy. Bribery is a crime of corruption, and its object is the integrity of state functionaries, which damages the prestige of the government among the people. The amount of bribery does not affect the essential characteristics of the right to use it for profit, and its legal punishment should match the nature of the crime. It is obviously unreasonable and unscientific to regard the statutory punishment of accepting bribes as a corruption crime completely different from its direct object.

Legislation divides the sentencing standard of bribery crime by specific amount, regards bribery as an important element to seek benefits for others, and tells members of society that bribery is a crime of amount, and it is not a crime to accept bribes without benefiting others. These two factors in the crime of accepting bribes declare that acts that violate the fundamental interests of society can not be punished. Legislation restricts the scope of application of punishment through "plot", "amount" and "seeking benefits for others", which leads to the inseparable legal network of bribery. Of course, once the punishment of accepting bribes becomes intensive, it will objectively expand the scope of the crime. However, the "dense but not strict" penalty design meets the requirements of modern criminal law. We can give consideration to the dual requirements of "secrecy" and "non-weightiness" from the aspects of diversification of penalty methods, non-penalty methods and strict restrictions on heavy punishment, so as to conform to the world trend of mitigation of punishment. According to the current criminal law, those who accept bribes of more than 5,000 yuan but less than 10000 yuan, show repentance after committing a crime, and actively return the stolen goods can be mitigated or exempted from punishment; On the contrary, in the bribery of company and enterprise personnel, the legislation does not stipulate lenient circumstances that can reduce or exempt criminal responsibility under any circumstances. This lenient legislation for state functionaries violates the general principle that the crime of accepting bribes is a duty crime of state functionaries, and this special identity crime should be severely punished. Some people think that the provisions of the current legislation on the starting penalty amount of corruption and bribery crimes are seriously out of balance with the standard amount of common crimes such as theft, and cannot reflect the fairness of punishment. [6] The author disagrees with this view. Judging from the fourth provision of Article 383 1 of the Criminal Law, even if the amount of corruption and bribery is less than 5,000 yuan and the circumstances are relatively minor, it is still recognized as a crime by legislation. And from the description of the charges, there is no provision for accepting bribes. On the contrary, legislation on common crimes such as theft is an important element for crimes with a large amount. The reason for the above view is the judicial interpretation of the standards for filing bribery cases by the two houses. However, the current legislative sentencing range of bribery crime is too wide, which can not well correspond to the stipulation in Article 5 of the Criminal Law that "the severity of punishment should be commensurate with the punishment and criminal responsibility of criminals". The author thinks that the range of sentencing can be tightened according to the social harmfulness of bribery and the responsibility of the actor, and short-term imprisonment can be taken for ordinary bribery, and according to the characteristics of bribery in post economy.

In view of the above analysis, the author suggests that according to the essential characteristics of the crime of accepting bribes, an additional charge should be added, an independent statutory penalty should be established, and the specific provisions of "amount" and "circumstances" should be abolished in legislation, so as to strictly limit the expansionary interpretation of legislation by judicial interpretation and clearly inform members of society that the state will deny bribery in criminal law regardless of the amount; Factors that require the judge's subjective judgment, such as "amount" and "plot", which affect the level of crime, can be established in the form of legislative interpretation or judicial interpretation.

(four) strictly limit the scope of application of the death penalty for accepting bribes.

Some people think that the application of death penalty to economic crimes such as bribery in China is a choice that does not conform to the concept of penalty benefit, and it becomes a means to protect low-value rights and interests at the expense of depriving high-value rights and interests. The death penalty so distributed not only obviously constitutes the choice that the cost is greater than the income and the input is greater than the output, but also cultivates the concept of equality between property and life for the people, thus artificially belittling the value of human life. Therefore, the death penalty for crimes such as bribery should be abolished. [7] The author believes that if we look at the death penalty alone, it can neither eliminate or reduce the occurrence of crimes, nor prevent the motive of "doing evil" because of its cruelty. It's never because of severely punishing human beings that they turn over a new leaf, so it's not that the death penalty for accepting bribes is not in line with the benefits of punishment, but that the death penalty itself is unreasonable. The author thinks that the abolition of the death penalty for accepting bribes in a short time lacks background conditions: there are 70 crimes involving the death penalty (excluding selective crimes) in ten chapters of China's criminal law, and there are two death penalty provisions for duty crimes in two chapters, namely corruption and bribery. On the other hand, there are 17 death penalty clauses in the crime of disrupting the order of socialist market economy in Chapter III of the Specific Provisions. If the death penalty for accepting bribes is abolished alone, it is difficult for people who hate official corruption to agree; In judicial practice, duty crime will not only cause economic harm, but also lead to serious personal casualties. However, there is no penalty for the crime of work-study program, and it is difficult for the public to accept the leniency of the death penalty in China under the widely applicable circumstances, so it is a "rush" to retain the death penalty for accepting bribes.

The author believes that the abolition of the death penalty for accepting bribes must match the general death penalty policy in China, and it is not appropriate to abolish the death penalty for accepting bribes alone at this stage. Then, is it reasonable to apply the death penalty to the crime of accepting bribes in the current legislation? The death penalty for corruption.

Standard, the scope of application of the death penalty for accepting bribes is defined as "accepting bribes of more than 65,438+10,000 yuan, and the circumstances are particularly serious" in the Criminal Code. The author believes that this standard does more harm than good in terms of penalty benefit and judicial practice, which goes beyond the limit of general prevention. It is unreasonable to set the extension period of applying the death penalty for accepting bribes at 654.38+10,000 yuan, even from the current social life. From the legal pursuit, it also goes against the historical trend of restricting or even abolishing the death penalty. 65,438+10,000 yuan is of little significance in judicial practice, which leads to the possibility of death penalty for bribery-the scope of the amount involved is too broad, which makes the death penalty for this crime lack strict restrictions, and the legislation or judicial interpretation is particularly serious and has no clear provisions on the circumstances, which leads to the uncertainty of the risk of death penalty in judicial practice, and the seriousness of criminal circumstances and the statutory punishment range are no longer available. At present, there is a situation in which the death penalty is never executed for accepting bribes, but it is sentenced to death for accepting bribes of millions, which has aroused public doubts. If the amount involved in bribery has no influence on the death penalty, why does the legislation clearly stipulate the amount conditions that have no influence on the death penalty, but does not stipulate the particularly serious circumstances with substantive significance?

References:

1. Zhang Xu: International Criminal Law-Present Situation and Prospect, Tsinghua University Publishing House, 1 Edition, 2005.

2. Ma Changsheng: Research on International Conventions and Criminal Law, Peking University Publishing House, 2004, version 1.

3. Bi Zhiqiang, Xiao Jieqing, Wang Haipeng, Zhang Baohua: Case Analysis of Conviction and Sentencing of Bribery, China Democracy and Legal Publishing House, 1, 2003.

494. Fan Chunming: Law Application of Corruption and Bribery Crimes, People's Court Press, 200 1, 1.

5. Lin Tan: United Nations Convention against Corruption, China Founder Publishing House, 1, 2004.

6. Meng Qinghua: New Trends in Bribery Research, China Founder Publishing House, 1, 2005.

7. Ma Kechang: A General Introduction to Crime, Wuhan University Press, 3rd edition, 2005.

8. Gao Mingxuan, Editor-in-Chief: Monograph on Criminal Law, Higher Education Press, 1 Edition, 2002.

9. Zhang Mingkai: Principles of Interpretation of Specific Provisions of Criminal Law, Renmin University of China Press, 1 Edition, 2004.

10. Chen Xingliang: New Situation of Criminal Law in Contemporary China, China University of Political Science and Law Press, 2002 1 Edition.

1 1. Wang Yunhai: Bribery Crime in the United States-Substantive Law and Procedural Law, China University of Political Science and Law Press, 2002, p. 1.

12. Chu: On the integration and relationship of crimes in criminal law, Peking University Publishing House, 1997, 1.

13. Xiao Yang: Research on Bribery, Law Press, 1994, 1.

14. Yang Xingguo: On the Legal Application and Judicial Interpretation of Corruption and Bribery Crimes, China Procuratorate Press, 2002, 1.

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[1] Ma Kechang: General Theory of Crime, Wuhan University Press, 3rd edition, 135.

[2] Liu Xilin: "On the objective aspects of bribery", "Journal of Lanzhou University of Commerce",No. 1 2002,No. 18.

[3] Wang Yunhai: "Bribery Crime in the United States-Substantive Law and Procedural Law", China University of Political Science and Law Press, 5th edition, 128.

[4] Lin: On the Legislative Perfection of the Crime of Bribery in China, Journal of Henan Vocational College of Judicial Police Officers,No. 1 2004, p. 24.

[5] Lin: On the Legislative Perfection of the Crime of Bribery in China, Journal of Henan Vocational College of Judicial Police Officers,No. 1 2004.

[6] He: Comparative Study of Corruption Crimes, Law Press, 2004, 1, p. 225.

[7] Qiu Xinglong: Philosophy and Jurisprudence of Punishment, L Edition, Law Press, 2003, pp. 534 and 539.