On The Objective Aspects Of Bribery

Bribery is a kind of complex crime. It is worth going further into it either in terms of theory or in terms of practice. Among the essential factors of bribery, the objective aspect is crucial, It is the essential characteristic. Therefore, the research into the objective aspect is significant, which can help us comfirm crimes correctly and distinguish bribery from other crimes. According to penal laws, the objective aspects of bribery include the following: the action of a person who takes advantage of his/her position and power to ask for other's property; or the action of a person who accepts other's property illegally and seeks gain for others. There have been different views on understanding essential factors of the objective aspects of bribery, not only in theoretical field but also in judicial practice. Based on the theory of components of the crime and also combined with judicial practice ,this paper studies the objective aspects of bribery.The first part presents the different statements of "taking advantage of one's position or power" in different period of time .Then it analyses how to understand these different views and puts forward the suggestion on how to understand it cornectly. Firstly: the implication of "taking advantage of one's position or power" The paper proves it from two aspects .First, whether "taking advantage of one's position or power" includes "taking advantage of one's job" and "taking advantage of one's post". Second, whether it includes "taking advantage of the convenient condition because of one's power or position". The result is that "taking advantage of one's position and power" doesn't include "taking advantage of one's job" and "taking advantage of one's post" whether in logic or from the explanation of the relative judicature. Nor does it include "taking advantage of the convenient condition because of one's power or position" according to the present penal laws.Secondly: Understanding "taking advantage of one's position or power":1.taking advantage of one's own position or power to undertake certain public affairs.2.taking advantage of convenient conditions by abusing one's power 3.taking advantage of the position or power of one's subordinate who are in the charge.4.taking advantage of the position or power of one's subordinate who are not in the charge .Second ,the implications of "taking advantage of one's position or power" are summarized according to tense .It includes taking advantage of one's past position or power; taking advantage of one's future position or power .Third, this paper gives the definition of "taking advantage of other's position or power", and thinks that "taking advantage of other's position or power" can cause crime according to the present law .Thirdly, In order to have a better understanding of "taking advantage of one's position or power", this paper makes a comparison between bribery, corruption and misappropriation of public funds. The meaning of "taking advantage of one's position or power" in misappropriation of public funds is similar to the one in corruption .But it has different meanings in bribery has two meanings: first, "taking advantage of one's own position or power". Second, "taking advantage of some corwenient conditions that are beyond one's position or power but are related to it .while "taking advantage of one's position or power "in corruption and misappropriation of pulic funds means "taking advantage of one's own position or power". That is ,the power of administering public funds.In the second part ,according to penal laws ,asking for and accepting other's property is the specific expression of bribery. The paper discusses "asking for bribery" .First, it discusses the question whether "asking for bribery" is the same as extortion. My opinion is "asking for bribery" is not equal to extortion. But it doesn't rule out the means of extortion .If one thinks they're the same ,he narrows the range of "Asking for bribery". And it doesn't talky with the original intention of legislation. Second ,this paper gives a further description of the means of asking for bribery. The stipulation of asking for bribery in penal laws is scientific and reasonable. This part first describes the means of asking for bribery in theory. Then it focuses on the five special means of asking for bribery from judicial practice. It includes accepting a present, accepting money, accepting stocks, asking for or accepting other's property in name of borrowing ,and accepting other's property in name of gambling .This paper also puts forward some special basis for comformation.The third part introduces and analyses several representative opinion of the characteristic of "seeking gain for others". It gives suggestions that "seeking gain for others is not the component of bribery ,but can be considered in measurement of penalty .After briefly describing the change of explanation of "seeking gain for others" in legislation and judicature, it points out :according to the law, "seeking gain for others" is not a component of asking for property .Yet ,it is a componet of accepting property .This paper analyses the three different under standing of the nature of the component of "seeking gain for others" in theory and in practice. It puts forward that from present legislation and the explanation of judicature, it is reasonable to put the content of "seeking gain for others" under subjective aspect. It is approved by the Supreme People's Court .From the observation of penal laws in Hong Kong, Taiwan and foreign countries, and combined with the judicial practice in our country ,the reasonable position in bribery of "seeking gain for others" is in measurement of penalty, not the component of bribery.