Research On The Judicial Identification Of Accomplices In The Crime Of Briber

The problem of complicity in bribery crime has always been a hot topic in China’s criminal law theory and practice departments.Although it is an "old problem",but the crime of bribery accomplice in the judicial identification but often appear "new situation",such as,layer upon layer of transference nature of the crime of bribery accomplice problem,knowingly after the crime of bribery accomplice problem.In order to regulate the judicial identification of complicity in the crime of bribery,the "two High authorities" have issued a number of judicial interpretations to give guidance,but from the practical effect,relevant difficult and controversial problems are still emerging.Although there are reasons why legal norms are difficult to be preset and include all types of crimes,the simple understanding and mechanical application of judicial organs to relevant legal norms are also factors that cannot be ignored.As a practical science,jurisprudence is inseparable from the normative research of judicial precedent,which is the real law in some sense and to some extent.Based on this,this thesis studies the judicial recognition of complicity in the crime of bribery,selects 1447 judgment documents involving complicity in the crime of bribery from 2010 to 2019 as the analysis sample,summarizes the relevant difficulties and controversial issues existing in the judicial recognition of complicity in the crime of bribery through sorting and analysis,and takes this as is basis.The related issues are discussed in the chapters.In addition to the introduction and conclusion,the thesis is divided into five chapters.Specifically:The first chapter is the practice pattern and problem of complicity in bribery crime.First of all,through the analysis and judgment of judicial judgment documents related to the complicity of bribery crime,objectively present the general situation of the judicial recognition of the complicity of bribery crime,and expounds the characteristics of the judicial recognition such as the diversification of judgment standards,the generalization of "dealing with other cases" and the simplification of judgment reasoning.Secondly,on the basis of systematic analysis and sorting of research samples,the relevant difficult and controversial problems existing in the judicial identification of complicity in bribery crime are summarized,which are as follows: First,there are differences on the qualitative of similar cases.It is mainly manifested in the differences of cognition between crime and non-crime,this crime and other crime in the qualitative determination of the facts of similar cases.Second,there are differences in the determination of the amount of joint bribery.The main manifestations are the differences in the recognition of the amount of common bribery in the same case and the differences in the recognition of the amount of common bribery in similar cases.Third,the reasons for judging the principal and accomplice are contradictory.The main performance is that the same or similar reasons to different actors sentenced to different principal and accomplice penalties.Finally,the causes of the above problems are analyzed.One is the lack of standardization in the qualitative determination of cases,which is manifested in taking the theory of joint crime as the substantive judgment basis of some cases,one-sided understanding and application of relevant judgment norms;Second,the alienation of the traditional relationship between punishment and crime,mainly refers to the judicial organs in order to achieve the purpose of reasonable sentencing,sentencing counter conviction of the thinking;Third,there are differences in relevant guiding opinions,which mainly refers to the inconsistency of opinions between the staff of the two Parties when interpreting the related issues of complicity in bribery crime,which has a negative impact on judicial personnel’s judgment work to a certain extent.This chapter mainly studies the status quo and problems of judicial application of complicity in bribery crime as a whole,laying a foundation for systematic research of the whole thesis.Chapter two is the normative basis of judicial recognition of complicity in bribery crime.The normative basis of judicial cognizance of complicity in bribery crime includes criminal law and relevant judicial interpretation.First of all,through combing and analyzing the relevant provisions related to the crime of accepting bribes,the general standard for the establishment of the crime of accepting bribes in the standard level is drawn,that is,each participant needs to have "collusion" subjectively,and objectively needs to implement the crime of accepting bribes(part)of the implementation behavior.In addition,in the non-specific relationship to establish the crime of bribery accomplice occasions,but also need to "joint possession of property" with the state staff.Secondly,through normative interpretation,it is believed that the establishment standard of the crime of bribery is based on the traditional theory of joint crime,but it is strict with the theory of joint crime.At the same time,because the relevant judicial interpretation only involves non-state staff to set up the provisions of the crime of bribery,therefore,its scope of application can not be applied to other types of bribery crime.The third chapter is the dimension of the subject’s identity in judicial recognition of the accomplice of bribery crime.The crime of accepting bribes is a real crime of identity,and the problem of joint crime must involve the theory of accomplice of identity crime.Based on this,this chapter first analyzes three types of problems of accomplice in identity crime,that is,the problem of the undocumented contributing to the undocumented committing the identity crime,the problem of the undocumented contributing to the undocumented committing the identity crime and the problem of the undocumented and the undocumented jointly committing the identity crime.Through the analysis,it is concluded that to deal with the problem of accomplice in identity crime,it is necessary to combine the criminal legislation of one country and blindly learn from foreign theories to deal with the problem of accomplice in identity crime in Our country.Secondly,this thesis analyzes and demonstrates the legislative model of joint crime in Our country--"principal and subordinate criminal model",and discusses the two core problems that the accomplice of identity crime wants to solve.Specifically,in the aspect of conviction,the author holds that under the "master-subordinate offender model",the role of identity is as a constitutive element of crime on the whole or in the sense of joint violation,that is,"the commonness of violation";Second,in the aspect of responsibility,through the substantive interpretation of the "identity" element,it is considered that in the joint crime of identity crime,the person with identity is the perpetrator and also the principal offender.The person without status is an accomplice in the narrow sense,but the principal or accomplice can be established according to the size of its role.Finally,several important issues of China’s bribery crime under the view of accomplice in identity crime are discussed.One is the overall identification method of complicity in bribery crime.Based on the "master-subordinate crime model",the participants of the bribery crime are divided into the perpetrator,the accomplice and the abettor at the level of conviction.On this basis,the principal offender and the accomplice are further distinguished at the level of sentencing.The second is to discuss the three types of complicity in bribery crime under the mode of "master-subordinate crime".Among them,we have reached a consensus on the issue of "non-state staff contributing to the state staff to commit the crime of bribery".According to the objective of the form,the problem of "state staff contributing to the non-state staff to implement the crime of bribery" can be classified into the third type of problems for discussion,that is,"state staff and non-state staff jointly implement the crime of bribery" type;For the third type of problem,it is considered that although the non-state staff has carried out part of the bribery crime on the surface,but because they do not have the special identity of the bribery crime,they can only be identified as the accomplice,but can not be identified as the joint crime.In addition,in the case that the mixed special subject sets up an accomplice in the crime of taking bribes,it is considered that such problems should be dealt with in accordance with the imagination of co-conspirators at the level of should,but at the level of reality,it is more simple and convenient to identify in terms of the decision of the principal offender and in line with the judicial tradition of Our country.The fourth chapter is the objective behavior dimension of judicial recognition of complicity in bribery crime.According to the provisions of criminal law in the types of bribery,the crime of bribery can be divided into three types of complicity of bribery,bribery and mediation.On the basis of clarifying the establishment elements of various types of bribery crime accomplice,combined with the relevant provisions of judicial interpretation,in the occasion of accepting bribery crime accomplice focus on the discussion of "seeking benefits for others","accepting other people’s property","on behalf of the transfer of matters","joint possession of property","give advice" and other elements of behavior;On the occasion of acquisitive bribery crime accomplice,the behavior elements such as "acquisitive others’ property" and "joint acquisitive others’ property" are discussed.On the occasion of mediating bribe accomplice,the author focuses on the mediating act and seeking improper benefits.In addition,in view of the fact that some of the behavioral requirements for the establishment of the bribery crime may also conform to the criminal constitution of other charges,the relevant behavioral requirements are analyzed,such as the introduction of bribery,multiple transfer of trust behavior.Chapter five the subjective and intentional dimension of judicial determination of complicity in bribery crime.According to the different identities of the actors,the intention of joint bribery can be divided into two categories: common bribery intention of different identities and common bribery intention of the same identities.Different identity subjects jointly take bribes intentionally that is "collusion".As for "collusion",this thesis mainly demonstrates from three aspects: theoretical investigation,standard understanding and practice confirmation.Firstly,from the theoretical level,it is believed that "collusion" and the intention of joint crime are related in the exterior and interior,and the identification of "collusion" is actually the identification of the intention of joint crime."Collusion" and "knowingly" are different in connotation as the determination standard of intentional joint crime.The connotation of "collusion" is greater than that of "knowingly",and "knowingly" is consistent with the type of implied collusion.The determination standard of "knowingly" as the intention of joint crime is mainly based on the consideration of criminal policy and evidence requirements.Secondly,at the level of norms,the connotation of "collusion" elements are understood from the aspects of the nature of multiple acts of bribery crime and the relevant provisions of complicity in bribery crime.At the same time,the author thinks that the types of complicity in bribery crime stipulated by judicial interpretation all contain the essential elements of "collusion",and expounds this.On the practical level,combined with relevant judicial cases,the thesis analyzes and demonstrates the problems involved in the types of "collusion in advance","collusion in the matter" and "promotion and confirmation of collusion after the event" respectively.Common bribery,deliberately decided on the same identity subject and discusses mainly from two aspects,one is normative,think the same identification subject of common bribery intention on connotation in line with "tong",but in that each have emphasize particularly on,among them,the "plot" is focused on in terms of "seek interests for others" has the meaning the cognizance of contact,However,the intention of the same identity subjects to jointly accept bribes focuses on the identification of meaning connection in the aspect of "accepting others’ property".The second is the practice of identification,according to the participants in "seeking benefits for others" and "accepting other people’s property" two aspects of the formation of the meaning of the connection between the different types of the same identity of the subject of joint bribery deliberately distinguish different types of identification.Specifically,the state staff in seeking benefits for others have the intention to contact,and jointly accept property,the establishment of common bribery intent;Each state staff in seeking benefits for others have a plan(or knowingly),but respectively accept money and property,generally not identified as a common intention to take bribes,with personal actual income to identify the amount of bribery;Each state functionary in seeking benefits for others only have general knowledge,and respectively accept property,can not be identified as a joint intention to take bribes;Only after the sharing of the spoils,in special circumstances can be identified as a joint intention to take bribes,and then set up the crime of taking bribes.