Criminal Legislation Research Of Commercial Bribe Crime

Commercial bribery is a kind of unfair competition and a major form of corruption, which damages the fair competition order of market economy,erodes the system of an honest and clean government and affects the healthy development of market economy in China.However,the current anti-commercial bribery legislation has certain problems,such as loose legal provisions, fuzzy concept and lack of judicial interpretation ,etc ,which leads to great difficulties for the law enforcement departments in judicial practice.Therefore,it is of greatsignificance to make clear the scope of commercial bribery,its constitutive requirements and legal liability. On the other side, our country already joined the United Nation Convention on Corruption, for well and international trail connection, must further consummate the commercial bribe crime of the criminal legislation. Based on the above reason, the author refers to "Criminal law" and the related judicial interpretation and the stipulation, uses for reference studies chapter of the senior, composes this article, becomes the crime question to the commercial bribe crime to propose that independently the preliminary conception, simultaneously further discussed this crime's concept limits and the crime constitution, hoped that provides the trifle to the legislation and the practice to use for reference. Full text minute following five parts:The first part for commercial bribe crime outline. The accurate limits commercial bribe's concept, is studies this crime to constitute the important document and the legislative pattern foundation, the author and "about Forbids Commercial Venal practices take "the People's Republic of China Coutering unfair competition" Temporary provisions" two laws and regulations as a foundation, carries on the analysis to the commercial bribe's concept limits, pointed out that the commercial bribe is refers to the economic activity, the operator to gain the improper commercial interest to give the Coherent units either individual belongings or other benefit behavior in secret, the unit or individual demands or receives the belongings or other benefit behavior in the economic activity. The commercial bribe already may display for operator's between bribing and is bribed, this is the typical commercial venal practices, may also display for the operator bribes or civil rights strength grasping to civil rights strength grasping demands or receives the bribe the behavior to the operator. In addition, this part of multianalysis current our country commercial bribe existence reason, had simultaneously pointed out that the current commercial bribe existence happening department concentrates, the profession characteristic to be obvious, above the National worker and the county office level the serious case are many and so on characteristics, the commercial bribe not only serious harassment market economy order, violates the other operator's legitimate rights and interests, simultaneously also enhanced the transaction cost, increases consumer's burden, has created the public wealth huge waste. The trade bribes into the economic domain"the hidden rule"and multiplies corrupt and the economic crimes hotbed, has become the economic crimes domain the prominent question.The second part for our country counter-commercial bribe crime legislation present situation and flaw. This part has carried on the proof to our country commercial bribe crime legal framework, pointed out that our country current counter-commercial bribe crime legal framework existence penalty scope equality, the object are not clear about, between the non-criminal law and the criminal law uncoordinated, the jurisdiction institution separation, questions and so on waste judicature resources, in this request legislation must and establishes it to commercial bribe crime independent Cheng Zui in the criminal law independent status, can for the practice in recognize that the commercial bribe crime provides the unified standards, thus control commercial bribe crime increasingly fierce present situation.Third part of overseas counter-commercial bribe crime legal rules and regulations and our country's legislative choice. Looking from the present various countries legislation, in the stipulation involves the official or outside public officials' crime, sets up the commercial bribe crime alone, is many national general procedures. This part enumerates the comparison to have representative Japan, American and in the German legislation pattern and the judicial practice procedure, legislates the pattern for our country and the legal rules and regulations provides uses for reference. The author thought that our country's counter-commercial bribe crime's legislation, should use legislates separately the pattern: Take "Coutering unfair competition" as the foundation, the unified commercial bribe recognizes the standard, in the economy, the administration, the criminal legislation gives the varying degree separately to the commercial bribe varying degree's behavior the punishment. Regarding the commercial bribe crime, must first be clear about it in the criminal law independent status.The fourth part for commercial bribe crime constitution important document recognizing. The establishment commercial bribe crime in the criminal law independent status, must have the explicit limits to this crime's constitution important document. This part from the commercial bribe crime's object, the objective aspect, the main body, the subjective aspect obtains to the commercial bribe crime constitution important document to carry on the elaboration, pointed out that the commercial crime of bribery the object should be the complex object, including fair competition's market transaction order and other operator's arm's length transaction opportunity, its main object is the fair competition market transaction order; The commercial bribe crime's objective aspect for the operator and the agent, violates the country to stipulate that to have the transaction opportunity in the trade activity or obtain the commercial interest, but or individual bribes to the unit concerned, as well as the unit concerned or individual use duty is convenient, demands or receives the bribe to opposite party, seeks the improper commercial interest for opposite party the behavior, as well as Coherent units or individual introduction bribe behavior. The commercial bribe crime's main body should include the natural person and the unit, this quadrat can crack down on the commercial bribe crime well. But regarding the commercial bribe's subjective aspect, the trade bribes in the crime, should not"to seek the improper benefit"to bribe as the trade the crime the subjective important document; In the commercial bribery crime, should profit from the United Nation Convention on Corruption the related commercial bribe crime establishment important document, cancels"seeks the benefit for other people"this constitution important document, so long as the author demands or receives the bribe is the constitution commercial bribe crime, thus the strict law net, cracks down on the commercial bribe crime well.The fifth part consummates for our country commercial bribe crime legislation. This chapter is also this article hard core. This part the question which exists by our country counter-commercial bribe legal framework in obtains, based on the commercial bribe crime's unique connotation, pointed out that should pull out the commercial bribe crime from a present criminal law system's bribe crime kind to, forms the related commercial bribe crime alone the complete legal framework, and based on this special strip legislation. Soon in the eighth chapter involves the commercial bribe crime the part with third chapter of 163, 164 to merge supposes the crime alone together. At the same time, our country criminal law minute is carries on the classification according to the crime similar object principle to the crime, because the commercial bribe crime's main body had already surmounted"the company, the enterprise", therefore should not establish again in the third chapter of destruction socialist market economy order crime 3rd hindrance company, in the business management order crime. Is opposite in the company, enterprise's normal management order says, the commercial bribe crime destroys to the fair market economy's fair competition order is more thorough, is serious, according to the above, the basis criminal law crime main object decision crime nature and the crime criminal law chapter ownership's principle, should integrate the commercial crime of bribery third chapter of destruction socialist market economy crime's eighth to harass in the market order crime. In addition, on charge establishment, besides should establish the independent trade to bribe the crime, the commercial bribery crime, the introduction commercial crime of bribery, but should also according to the United Nation Convention on Corruption additionally builds corresponding"to the foreign country public officials, the international public organization officials bribes the crime"and"to has the influence personnel to bribe the crime". At the same time, this part also talked about the commercial bribe crime penalty system present situation and the consummation. Our country present commercial bribe crime's penalty system existence penalty scope equality, the death penalty do not establish unreasonable, fine punishment questions and so on status flaw, qualifications punishment dislocation, in view of the present penalty system's in question, this article proposed that should abolish to this crime is highest may condemn death penalty's stipulation, and additionally builds the fine punishment, the enrichment qualifications punishment, the unification detection institution by to save the judicial resources and so on a series of suggestions, by the time establishment attack commercial bribe crime's persistent effect mechanism, the containment commercial bribe crime's occurrence, protects the socialist market economy order the healthy development.