Harnessing The Crimes Of Commercial Bribery With Criminal Law

Since our country carried out the work on harnessing the crimes of commercial bribery, problems on crimes of commercial bribery have been thought highly in both theoretical fields and judicial departments, several theoretical works on crimes of commercial bribery came into being. Looking over the present research works, some basic problems in crimes of commercial bribery such as the concept, the legal character and criminal practice have not come to the same point. The thesis studies on the problems on crimes of commercial bribery, focuses on the concept, the legal character, the criminal practice, the punishment and legal perfect. The research is helpful to the theoretical learning and judicial practice and has important values. The paper consists of seven parts and is divided as follows.Preface. This chapter briefly introduces the theoretical status quo on crimes of commercial bribery. This chapter believes that the concept influences the direction on crimes of commercial bribery. It is easy to irritate the confusion in practice without specialized law rules against crimes of commercial bribery. After studying and analyzing the present theoretical research works, the paper believes that the measures in studying crimes of commercial bribery should be according to the conditions of China and other countries, should integrate theory with practice. This paper uses many studying ways such as systematic analysis, comparative study and cases analyzing to study the crimes of commercial bribery, in order to put forward some proposals to deal well with the crimes of commercial bribery.ChapterⅠ. Commercial bribery in criminal backgrounds. At present commercial bribery is quite common and has severe harm. The bad conditions on crimes of commercial bribery need the harnessing of the criminal law rules. Commercial bribery in criminal backgrounds may draw lessons from economic law, but should not limit to the administrating regulations of the National Bureau of Industry and Commerce, it may include all the commercial appearance that can reflect the essence of commercial bribery. This paper bases on the social needs of harnessing crimes of commercial bribery and the volume of this paper, defines the concept of crimes of commercial bribery according to the Penal Code and judicial explanation. Crimes of commercial bribery include:1. whoever, for the purpose of securing commercial benefits, gives money or property; 2. any who is related to commercial activities, by taking advantage of his position, extorts money or property from another person, or illegally accept another person’s money or property in return for securing benefits for the person; 3. whoever introduces a bribe to the commercial participators. Crimes of commercial bribery involve 8 crimes in penal code. Crimes of commercial bribery are different from commercial bribery and crimes of state functionary bribery.ChapterⅡ. Character on crimes of commercial bribery. It’s important to study the character on crimes of commercial bribery. Crimes of commercial bribery are not legal crimes in penal code and do not have constitutions of crimes. This paper tries to study the character on crimes of commercial bribery from such aspects as the offending benefits, the objective aspects, the subjects and the subjective aspects. Crimes of commercial bribery mainly offend the economic order, even if it may offend other benefits. The obvious difference between crimes of commercial bribery and crimes of state functionary bribery is the fields that crimes happened in. Crimes of commercial bribery took place in commercial fields. Economic fields are not as clear as commercial fields and should not be used to define the realm on crimes of commercial bribery. "Position" in "by taking advantage of his position" in crimes of commercial bribery should be defined widely. "securing benefits for the person" should be explained narrowly in order to differ the two kinds of crimes of bribery. The subjects can be divided into several groups, that is the person who gives money or property to others and the person who accepts another person’s money or property, state functionary person and non-state functionary person, the person and the unit. Criminal responsibility is borne according to the subjects status and authorized strength. As to the same action, the state functionary person and state body would bear much more heavy criminal responsibility and those who are not state functionary person or state body. To those which are not state-owned units, even if they accept another person’s much money or property, they will not be regarded as crimes. Those subjects on crimes of commercial bribery all have direct criminal intent and clearly criminal intention. All the subjects on crimes of commercial bribery know their acts entail harmful consequences to market economic order but wish such consequences to occurChapterⅢ. Practice on several problems of commercial bribery crimes. This chapter is studying on several problems of commercial bribery crimes according to the present criminal law rules and judicial interpretation. Section 1, explanation of criminal law rules involving with economic dealings. Regulations about economic dealings are important to harness the crimes of commercial bribery. "By taking advantage of his position", "Securing benefits for the person ", "For the purpose of securing illegitimate benefits" should be the necessary factor in crimes of commercial bribery. Section 2, about accepting off-the- book property. This section bases on a true case,after analyzing the meanings of rebates and service charges, points out that all the rebates are illegal. Many factors should consider in deciding whether an action could be a crime of commercial bribery, these factors include in the amounts of rebates and service charges, the status of the subject and the necessary condition of taking advantage of his position. Item 387.2 in penal code has some shortcomings. Section 3, scope and amount of commercial bribery. All the benefits should be commercial bribery, but in fact only property and benefits relevant to property could be commercial bribery. This paper believes that scope and amount of commercial bribery could be decided in considering the essence of commercial bribery and the practical justice. Section 4, joint crimes of commercial bribery. The subjects with the same status can be guilty of joint crimes of commercial bribery. The subjects with the different status can also be guilty of joint crimes of commercial bribery. Section 5, commercial bribery committed by doctors and teachers. hi the cases involving crimes of commercial bribery committed by doctors and teachers, taking advantage of his position is the most obvious character, status of one subject is not important necessarily.ChapterⅣ. Punishments on crimes of commercial bribery. This chapter consists of two sections. Section 1 focuses on the legal punishments on crimes of commercial bribery and analyzes the character. The legal punishments are various and include in death penalty, fine punishment is shortage, confiscation of property needs some strict factors. Section 2 is about the circumstances of the crimes. Language about the circumstances of the crimes is ambiguous and open. Bribery amounts are too emphasized. So in sentencing a crime of commercial bribery, the following factors should be considered:the amount of the bribe, the circumstance of extorting money or property, the circumstance of giving up the embezzled money of his own accord, the amount of loss made by accepting money or property, the circumstance of securing benefits for the person.In executing the punishments, the criminals of commercial bribery should be treated with the other criminals. Suspension of sentence should be strict. Commutation of punishment and parole should also be strict in executing the punishments.Chapter V. Legal perfect on crimes of commercial bribery. In order to take advantage of the superiority of criminal law rules in dealing with crimes of commercial bribery, it’s necessary to build a legal system including to civil law, economic law, governing administration law and criminal law. Three aspects including in legal mode, constitution and punishment should be considered in perfect the law rules involving the commercial bribery. As to the legal mode, keeping the present mode and taking advantage of judicial interpretation and amendments to the criminal law is necessary. As to the constitution, paying attention to the regulations of giving bribe and accepting bribe. As to the punishments, it’s necessary to enlarge the range of property punishment, to increase the punishment of property, to regulate the status punishment directly against the commercial bribery, to regulate the same punishment aimed at the giving bribery and accepting bribery. Try to abolish death penalty in the cases of commercial bribery to promote to cancel death penalty in all the cases of economic crimes.Conclusion. Causes on crimes of commercial bribery are complex, ways in dealing with crimes of commercial bribery are various. Only combing criminal law rules with other measures, best results can be achieved in harnessing the crimes of commercial bribery. It’s a good way to use the present criminal law rules and to perfect the present regulations and legal mode in referring to the regulations of other countries.