Exploration Of The Judicial Practice In Several New Types Of Bribery

This article is going to explore some new forms of bribery crimes. Most of the new forms of bribery crime discussed in this article are the ten illustrated in the judicial suggestion, ("SNFB"), set forth by the Supreme Court and Supreme Procurator ate.The SNFB makes it clear that how to identify these ten different forms of bribery and the bound between crimes of bribery and activities which are not crimes. This, to some extent, has remedied the defects of already existing provisions; however, from the prospective of judicial practice, it is difficult to use some of the provisions in the SNFB to identify the new forms of bribery crimes in certain conditions. For this reason, this article will study four of those new forms of bribery in the SNFB from the angle of criminal law application.This article is divided in to five chapters. Chapter One is about the basic theory of bribery crime. The first section, based on the evolvement of the criminal law in China, is mainly to state and summarize the classification of bribery in the 1997 criminal law, the general feature of bribery as well as some relevant concepts. The second section is particularly to analyze the object of the bribery crime. Through the comparison and analysis, it is concluded in the article that the first priority of the identification of the bribery crime is to carry out the criminal law strictly. It is suggested that the scope of the bribery crime's object should be extended. The object of the bribery crime ought to consist of property and property interest. The third section of Chapter One is to discuss the actus reus of the bribery crime. It is suggested in the article that one of the ingredients of the bribery crime,"in order to make profits for others", should be removed.From the Chapter Two to Chapter Five, the author will not only analyze five new forms of bribery crime related to the SNFB to find out the difficulty and key points in the specific judicial practice, but also explore the concrete standards of indentifying the bribery crimes in new forms.Chapter Two will discuss the bribery crimes committed through transaction. First, the author will talk about the concept and types of the bribery crimes in the form of transaction. Then, the author will discuss the criteria about how to confirm deviation of the normal market price. Based on the three criteria proposed by others, the author proposes a new one. That is when we decide whether a price deviated from a normal market price or not, we should take the cost price as a rod. If the cost price of the product can be ascertained, and if the public servant buys that product from the person who request his help at a price the same as or lower than the cost price, it is evident that the public servant takes bribe by purchasing something at an unreasonable low price. Similarly, if the public servant sells something at a higher price to the person who requires his help, we have to calculate the margin between the normal market price and the real price. Generally speaking, in this condition, only the margin is 2 times higher than the normal one, we can determine that the transaction is a form of bribe.Chapter Three is mainly about bribery in the form of acceptance of shares without consideration. In the former section, first, the author will talk about the concept, the features and the type of shares without consideration. Second, the author will introduce the types of shares without consideration. Such shares can be divided in to two groups: those transferred with registration and those transferred without registration. Third, the author will introduce the evaluation of the shares without consideration. In the latter section of this chapter, three kinds of problems, which it is difficult to deal with in the judicial practice, will be mentioned. From the angle of theory and practice, the author will analyze the reasons of their existence, find the crux of these problems and provide some solutions to these problems.Chapter Four is to probe in to the bribery crimes committed by someone especially relevant to the public servant. The first section is an introduction of the concepts, namely the person having a special relationship with the public servant and the relationship based on common interest. The author also points out that common interest cannot be limited to common property interest; thus, we cannot simply equate the relationship based on common interest with the relationship based on common property interest. At the same time, the author analyzes and comments on the manifestation of two main ingredients of bribery crime, incitement and possession. The second section is to introduce how to identify the person having a special relationship with the public servant as an accomplice. From the respective of the accomplice of the bribery crime, the author analyzes three ingredients of the bribery crime in depth: a) the conspiracy between the public servant and the person who has the special relationship with the public servant; b) the offence committed by the public servant together with the person who has the special relationship with him; c) no requirement of the joint possession of the bribe by both the public servant and the person who has a special relationship with him. The third section is to discuss how to distinguish the lawful salary from that the person having a special relationship with a public servant got from the entities of which he is an employee only in name. The key to this question, the author argues, is to find out whether the money is based on labor or based on the power-money transaction. We can have the reference to the labor law as well as other related regulations to affirm the salary of an employee only in name.Chapter Five is to discuss the bribery crime in the form of acceptance of property the ownership of which is not transferred by registration. This kind of offence is committed in the name of loan. In the first section, the author will talk about the judicial interpretation concerning the bribe in the name of loan (which is also can be called as no ownership registration bribe). The author points out that the bribees always accept bribe in the name of loan and they will use this to defend themselves in the trial to evade responsibility. As for this kind of condition, the SNFB set five main aspects as references to distinguish the bribe in the name of loan from the real loan. The author thinks that only after the law enforcement agencies combine these five aspects and ascertain some details of the case; for example, the agencies have to find the mens rea of both the bribee and person who offer bribe, whether or not the bribee took advantage of his power to obtain profits for the person who offer bribe, they can distinguish the bribe in name of loan from the real loan. The second section of this chapter is to talk about the different views on how to identify the bribe in the name of loan. By the analysis of the ingredients of the bribery crime, the author believes that the identification should be based on two principles: the subjectivity should match the objectivity; the penalty should match the offence. It can be interpreted like this: the lawful transference of the ownership of the property, such as a car or a house, is not requirement of the identification of accomplished bribery crime. As long as they have the expression of giving and accepting, and the accused possesses the property, the accomplished bribery crime is confirmed.