An Analysis On Some Issues In Identifying Graft Crime

Graft crime is a kind of multiple, serious and dangerous crime post economic crime; it is the main embodiment of civil servant's graft crime, which is always attacked by our country's criminal law bitterly. The punishment for graft crime is carefully set in our country's criminal law. In some non-criminal regulations, many rules on corruption and bribery are involved. Several judicial interpretation were issued to punish graft crime by the supreme judicial departments. In recent years, especially after the revised criminal laws being carried out in 1997, the criminal laws field of our country has had an in depth case study on graft crime, and got great successes, which promoted the attack on graft crime.Although the efforts to crack down on corruption is increased continuously in our country, graft crime is still growing on and on with the development of our country's political and economic reform's gradually deepening and some new features of graft crime has been shown which endanger our society and political stability. An important reason for causing the situation is that in judicial practice, many problems on conviction of the graft crime still can't be solved, for example, there are much dispute in the subjectival definition of graft crime,complicity problems of graft crime,in completed problems of graft crime and the conviction of graft crime's number. Therefore the writer tries to start from the concept of graft crime, and convey some thoughts by analyzing all kinds of different thoughts in the conviction of graft crime, on several difficult problems of graft crime's conviction. I hope that the theory of community and legislators on corruption concerns identified in order to promote the improvement of job-related crimes legislation. This thesis is divided into 5 parts.The subjectival conviction of graft crime is studied in Part-1. According to the articles of Criminal Law in 1997, the subject of graft crime is functionary in the state organ, which can be divided into personnel of organs of state, ready functionary in the state organ and the personnel who is entrusted by state-owned units to do mandatory administration to administrate the state property. In this part, the writer analyzes the three subjects'conviction carefully. It's pointed in the part that Chinese Communist and the government institutions at various levels of the Chinese People's Political Consultative Conference and some public institutions attached to state organs, which carry out certain administrative functionals and social administrative functionals should belong to state organs. The writer analyzes the conviction of ready functionary in the state organ by the study of the concept of state-owned company or enterprise, state-owned public institution, people's organization and serving in public service. By the analysis of the criminal meaning of entrustment, the writer elaborates the defination of the personnel who is entrusted to manage the state property.Joint offence problems on graft crime are studied in Part-2. In this part, the writer elaborates the concept and classification of joint offence of graft crime. In item 2 of Article 382 of the current criminal law, joint graft crime is ruled. Joint graft crime is mainly divided into joint graft crime with the same subject and joint graft crime with mixed subjects. Joint graft crime with the same subject is easily recognized. The writer discusses joint graft crime with mixed subjects by comparing and analyzing several opinions on how to define the nature of joint graft crime with the same subject. First, a hybrid of the main comparative analysis of common crime, corruption and how the characterization of several views, pointed out the existence of these types of defects and deficiencies in view, and then analyzes the conviction on the phenomenon that non-functionary in the state organ take advantage of the post of functionary in the state organ to implement graft crime with functionary in the state organ together, and the phenomenon that functionary in the state organ abet and help non-functionary in the state organ invade, steal and cheat public property, as well as the conviction of fact that corporation, enterprise or the personnel of other units take the advantage of their posts to invade the property of their own units.The completion and incompletion problems of graft crime are studied in Part-3. Why incompletion can exist in graft crime is analyzed first by the writer, and then by analyzing the standards on defining completion and incompletion in theoretical field, it's defined that whether possess public property is the standard to distinct the completion and incompletion of graft crime. As long as the behavior implements graft crime, and realizes the goal of possessing the public property illegally, the action belongs to completion of graft crime; not possessing the public property belongs to incompletion. The writer considers that the meaning of possession in criminal laws is different from the meaning of possession in civil law. The meaning of possession in criminal laws is general, and it involves all real rights. The objective symbol to define whether the behavior possesses the public property illegally should depend on whether the behavior gets the possession right for the public property but not the public property. But with real estate as the object of corruption Accomplished, attempted questions to specific analysis. Because even if there is no transfer of ownership of real property, the perpetrator can use and return them, which returns to the actors to use and the benefits that can be measured in monetary terms. When the perpetrator used his position to the illegal possession of the interest, up to a certain amount of corruption can be recognized as an accomplished crime.Several problems on graft crime's number are studied in Part-4. First by analyzing several opinions in theoretical circles today, the defination of individual delinquency's number in joint offence of graft crime is discussed. And it's considered that in joint offence of graft crime, complicities should be punished by the total number of crime, and each complicity's position and functions in the crime as well as the division of the plunder are only the reference factors for the judge within the same extent for measurement of punishment. And then the writer discusses how to define the number of different target of a crime in graft crime and how to count the number of several graft crime's accumulation. Finally the writer analyzes that the interest of embezzlement is illegal and it should be demanded to hand in which can't be reckoned in the total of embezzlement.The effect of illicit money of graft crime's trace has for conviction and the problems on defalcation turns into graft crime are the goals in Part-5. In the part the writer analyzes carefully that the trace of illicit money of graft crime doesn't the conviction of graft crime; it is not the essential factor to convict, but the discretionary circumstances for sentencing. The writer discusses the problem of defalcation turning into graft crime by analyzing the conviction of defalcation without returning which finally becomes graft crime and the conviction of escaping with public money embezzled which turns into graft crime.