The Research Of "Family" Common Bribery Crime

This article is based on the recognition of"family"common bribery crime intent and the presumption principle is applied, the common behavior analysis of"family"bribery crime and the recognition of the family member's bribed crime amount and so on several questions to make the discussion and the analysis, by the time to the judicial solid service in recognized this type the criminality has a benefit.I. The present adaptation condition of the criminal law about"family"common bribery crimeThe present law to the bribe crime's new change and new shape doesn't stipulate explicitly, so when the law is applied there are many not clear places, the concrete manifestation was: First, between the relative's bribed intent is difficulty to recognize. Second, the relative's common implementation behavior together is too difficulty too define. Third, bribe"belongings"is difficult to define and the family member is bribed amount there has a confusion to recognize. Fourth, the main body of"bribe-receiving by way of good offices"has been too narrow and so on the aspect.II. The recognition of intent in the"family"common bribery crimeAbout the intentional content's recognition of the"family"common bribery crime, the theory has"knew perfectly well","generally the knowledge said","possibly said"and so on the different viewpoint, the author thought"generally the knowledge said"is more reasonable.First,"possibly said"completely equated the objective situation to the subjective situation, and"knew perfectly well"then inevitably will let the scope of intent be excessively narrow, this causes very many situations all to be unable to recognize. Second, according to the criminal law about the intentions stipulation, the possibility of the"knew perfectly well"is the lowest standard about the recognition of intent. Makes concrete to the bribery in, when the state official has the most basic summary understanding about the behavior of his family members'demanding money or property , this kind of situation completely conforms to the lowest standard of the crime intention's recognizing. Third, the special relationship among the family members decides.Based on the intent recognizing of the"family"common bribery crime, the author think that when recognize the intent in the process we should apply the presumption principle.First, between the special relations of the relative forms enable the intentionally formation to have succinct very difficultly, vagueness and so on the characteristic, the judicial personnel is even unable to prove that there is the existence of the bribe intent among the country staff and the relatives, in this kind of the situation the legal request a side on duty to undertake the certain explanation, this is fair.Second, The Tang Law as well as in the foreign advanced legislation is all concerned to the bribe presumption principle, in our country criminal law also has actually absorbed the presumption legislation spirit, thus to the family member used the presumption principle, is accord with the criminal law.Third, in fact the innocent presumption principle also is the criminal law's one kind of presumption, the two is unifies to recognized in the bribe crime process, is not certainly contradictory, moreover when recognized in person's subjective heart the innocent presumption principle is limit from the presumption principle.Certainly, the proof wins after all the presumption, when using the presumption principle must pay attention to its suitable condition.III. The common behavior of"family"bribery crimeThis part of author mainly elaborates the definition about the common behavior in the family members'bribery, and the definition and analysis of the special behavior in the real life.The definition of the practice actIt has the necessity to recognize and analyze whether the bribe crime is the single act crime or the complex act crime, this question key lies in to the location about"seeks the benefit for the other people"in the bribe crime, and it is also the key about the correct definition of the relatives'common bribery practice act. The author thinks that we should accept"the new objective important document to say"namely"the promise said", mainly considered based on following several aspects.First, from legal article itself stipulated, in"seeks the benefit for the other people"center,"for the other people"is the supplementary ingredient,"seeks the benefit"is the central word, it is the guest structure phrase, indicates one kind of behavior, is one kind of goal by no means.Next,"seek the benefit for the other people"is recognized for the subjective important document, instead reduced the bribery punishment scope in fact, moreover this viewpoint will obviously have the utilitarianism color which will be the punishment punishes.Third, the bribery is based on the behavior but is not based on the result, the result of seeks the benefit for the other people whether does realize, certainly does not affect the bribery crime's establishment, so this important document belonging to the objective important document certainly cannot cause the confusion about the bribery crime's accomplished and attempted.Fourth, if the person has the subjective of"seeks the benefit for the other people", his behavior tendency inevitably is able to request the objective behavior with, even if"the promise","pledged"and so on also is one kind of person objective behavior in fact .Also it is by no means that"the promise"is too difficult to recognize.Therefore, the author's opinion is"seek the benefit for the other people"is took the objective important document exists; the country staff's relative is perfectly the common practice offender.The determines and analyzes about the special behaviorFirst, relatives use his influence to receive the other people's property, the country staff certainly does not know the circumstances of the matter in the situation, the author thought at present in the criminal law is unable to its punishment in our country, this behavior certainly does not constitute the extort crime or the cheating crime, therefore we should profit from the relative stipulations of The United Nations Convention Against Corruption, we should additionally build the influence transaction crime. Second, countries staff has then sought the benefit using the duty for the other people, then lets the relative who does not know the circumstances of the matter receive or demand the bribe, in this situation there is no intent among the state official and his family members, should punish to the country staff by the alone as the bribe crime. Third, family members knew perfectly well it is the bribe but also share with, the relative and the country staff lack the subjective intent on together, moreover this time country staff has already completed the bribe crime, should alone determine guilt to the country staff, the relative certainly does not constitute the crime. Forth, relatives replace of countries staff received the bribe, the relative's intention about the bribe holds knows perfectly well, the country staff and his relative has formed the bribe intent, moreover the relative has accepted the bribe, this behavior is the common practice behavior of the bribe crime, they should the bribery accomplice punish both.IV. The recognizing about the crime amount among the family member's bribeThis part mainly has carried on the scope about the bribed"money or property", and introduce the recognition and some computational methods about the family members'bribe amount.The recognizing of the bribe"belongings"scopeAbout bribe"belongings"scope the theory has the money and the goods said, the property benefit mediates the benefit to say and so on the different opinion, the author thought truthfully"the belongings"should be said the explanation for the belongings as well as the property benefit. First, the property said removes outside all belongings and benefits, this cause in very many situations the country staff to gather the property benefit the behavior to be unable to turn over to set. Next, as a result of the legal itself inherent limitation and confine as well as the legal writing characteristic, the bribery"belongings"is expanded the explanation for the property benefit, also conforms to"the belongings"in a word itself meaning scope boundary also to conform to time the bribery establishment legislation goal. Third, in non- property benefit with present criminal law"belongings"conflict is cannot compromise in any event, moreover the non- property benefit not concrete quantification standard, its concrete amount is unable to determine.The recognizing and computation of the relative's bribe money or property amountThe author thought regarding to the family members, their bribe amount recognized should use"the crime total amount to say"more reasonably, the reason lies in: First, according to our country criminal law theory, should adopt"partially practice the complete responsibility"regarding the common crime, the common offenders not only must undertake the legal responsibility about his own crime and results, but also undertake the responsibility on the common crime which he participated entirely. Next, using other theories all has certain unreasonable and imperfect place, this causes in very many situations the behavior very difficult to punish. Third, among family members'property generally is the joint property, common consumption to use, therefore when regarding the bribe belongings amount there is already nonessential separately recognized also truly with difficulty separately gives to recognize.Regarding property benefit so long as found the appropriate method to carry on the computation can construct calculates, so it enable to have the reality of this property benefit computation operational, thus based on the bribed amount and other crime plots carry on the correct punishment and guilt to various family members, manifests the criminal law fair.