Mediate Understanding And Reconstruction Of The Job Elements And Profit Elements Of The Crime Of Bribery

Existing Penal Code section 388 stipulates: "The National staff, in the use of facilities of his power or position, by using other national staffs behavior of job for illegitimate interests, requesting property or receiving property, is penalized the crime of taking bribes." How to understand and grasp the section correctly, educational circles and actual situation sections of criminal law have great differences. If we can grasp the connotation of committing the crime of bribery accurately, analyze and research the difficult problems arising in theory and practice usually, and resolve some confusion encountered in practice, it will be of great importance.On the basis of well-done research, this text tries to synthesize different scholars' standpoints, studying and discussing theories appearing in the controversy, trying hard from the angle of theory and practice, and put forward a little bit my own opinion, in order to be advantageous to mediating bribery crime in further research and judicatory practice. The full text corpus is totally divided into three parts:The first part synopsis said the lawmaking origin and development of mediating bribery crime, and put forward my own opinion on whether to clarify this crime as an independent crime which has been disputed for a long time in the field of Penal Code section 388.The article thinks that, from the solid angle, the provision of Penal Code section 388 aren't seen as an independent crime match criminal law theories and our country's current judicatory practice.The second part mainly launches treatise surrounding job item of mediating bribery crime, in which introduces the check and supervision relation, the horizontal check and supervision relation theories, the non-check and supervision relation theories, and the identity and face theories, and then combines a concrete case to carry on a critique to various above-mentioned theories, and put forward that we should insist on making judgment on the foundation of concrete matter to the judgment of the job item in judicatory fulfillment , but we can't return the knot as a certain phrase in brief. Concrete judgment standard is as follows: firstly, it must take job as foundation; secondly, whether or not the mediate person's job power or position has a function of influence to a certain behavior of other staff members; thirdly, if the mediated person refuses to mediate item, it will not bring disadvantageous result possibly and immediately.The third part of the article launches the analysis surrounding benefit item of mediating bribery crime. What is meant as "a malfeasant benefits" is the key to comprehend that important item. The article introduces the narrow sense theory, the broad sense theory, compromise theory, and disobeying job standpoint theory respectively, which are combined with a concrete case to analyze various orgies, and then makes a conclusion that all orgies have death shortcomings. And the basic reason of all these results is lawmaking regulations, and we can solve various perplexities currently in theories and practice only by canceling lawmaking provision of the benefit item.The part of the conclusion of the article reconstructs lawmaking provision of mediate bribery crime.