Review And Application On Certain Question Of The Judicial Interpretation Of Commercial Bribery

Commercial bribery, as a unique phenomenon in the process of economic development, exists in many areas of socio-economic and market transactions, undermining the construction and development of China's harmonious society. Recent years, China has taken a special and key management on commercial bribery, and has made some progress in supporting and improving the relevant laws. In 2008, The Supreme People's Court and Supreme People's Procuratorate jointly issued "the opinion on certain question of the law application on handling of criminal cases of commercial bribery "can be said the milestones in the combat against commercial bribery in China in recent years. For the past year, the unreasonable of some of Opinion's provisions and difficulties in the process of application has gradually revealed. There are also a lot of differences in the understanding and application of certain provisions of the "Opinion" between the academia and judicial practitioners. In order to accurately understand and apply the "Opinion" , from the perspective of hermeneutics of the criminal law, this article is going to research and to analyze on several original theories of the commercial bribery, put forward my own point of view on those issues, in order to guide the future practice of the "Opinion".In the first chapter, "theoretical categorization of the commercial bribery ", I discussed the necessity of the theoretical categorization of the commercial bribery from the aspect of reality and the aspect of ought. I pointed out that after 30 years'shaping and developments, the theoretical categorization of the commercial bribery has been finally and formally settled by the provisions of the "Opinion". From the aspect of ought, the theoretical categorization of the commercial bribery has a positive significance in the prevention and research of this kind of crime. And for these reasons, this theoretical categorization is worthy of recognition.In the second chapter "'property interests' of the commercial bribery ", I discussed the rationality of the new addition of the "property interests" into the constitution of the commercial bribery. The addition of the "property interests" as the object of the commercial bribery has met the purpose of the provision of the law. And it is not a analogical interpretation of the law. Moreover, I suggested that the "property interests" should be interpreted strictly. Specifically, "property interests" must be property itself, must have economic value, must have the equivalence.In the third chapter "pursuing the 'improper benefit' of commercial bribery", in the aspect of how to identify "improper benefit", I pointed out the irrationality of the "Opinion". First of all, in the regards of the timeliness and instability of the party's policy and the bulky nature and complexity of the local governments'regulations, it is unreasonable to add the party's policy and the local governments'regulation into the judgment basis of the illegality of the commercial bribery. Thus it should be grasped cautiously in practice. Secondly, for the "Opinion" had also added the industry standards into the judgment basis of the illegality of the commercial bribery, I also suggested that it should be grasped cautiously in practice. Only those authoritative and normative industry standards can be used as the judgment basis of the illegality of the commercial bribery. Moreover, I think that the meaning of "violation of state regulations" in the second paragraph of the 389th article in the penalty code should remain unchanged. Last but not the least, in the situation of "requesting" to provide illegal assistance, I pointed out that we should decide the crime's nature by the standard of the briber. And we can not decide the nature of the crime by the conduct of the bribee. And at this time, the burden of proof should be held by the prosecution. The prosecution must have evidence to proof that the suspect had indeed openly and clearly expressed the illegal "request" to the bribee.In the fourth chapter "the joint crime of commercial bribery", for the provisions of the joint crime of the non-national staff and the national staff in the "Opinion", firstly, I pointed out that "those who has identity" and "those who doesn't have identity" can commit a joint crime of commercial bribery. Because this kind of interpretation of law has a legal basis. And it is not against the principle of uniformity of rights and obligations. And thus it is not an analogical interpretation of the law. Secondly, in the situation of the non-national staff and national staff using their own conveniences of the positions separately to seek benefits for others, I do not agree with the provisions of the "Opinion" to decide the nature of the joint crime by the nature of the crime of the principle criminal. My point of view is that we should adopt the principle of imaginative joinder to solve this problem. And that means we should choose the harsh one of the two crimes and charges the criminal with a severe punishment.In the fifth chapter "the several changes of the constitution of the commercial bribery in the medical field", I discussed the rationality of several changes in the "Opinion". First of all, on the conduct of "deducting a percentage through the prescription", I pointed out that the conduct of "prescribing" is not a official act of exercising the state power. And I agreed with the "Opinion" that whoever conducts the act of "deducting a percentage through the prescription" should constitute the crime of bribery of non-national staff. And I also highlighted that when the doctors in the state-owned medical facility constitute the bribery and the bribery of non-national staff simultaneously should be convicted both of the two crimes and should have combined punishment for these two offenses. Secondly, on the situation of the requesting a bribery of the bribery of non-national staff, I pointed out that "Opinion" is not reasonable to remove the elements of "seeking benefits for others" of the constitution of the crime. My opinion is that this kind of provisions will expand the crime ring inappropriately and also in violation of the principle of legality. It is an analogical interpretation of the law.In the end, I pointed out that this thesis is aiming at offering advices to the counteracting of the commercial bribery through the hermeneutic perspective of the criminal law. In order to fighting against the crimes of the commercial bribery, we should focus on treatment and prevention equally, use both penalty means and other means, use the punishment method and also the education method, relying on the power of all sectors of the society and all walks of life to build a strict legal hedge to fight against the commercial bribery.