On Illegitimate Benefits In Bribery Crimes In China

Although bribery crimes ruled by Chinese criminal laws involve the specifications aboutillegitimate benefits, both the theory circle of criminal law and the circle of judicial practice havedifferences in many aspects of illegitimate benefits. There are even some opinions deeming that‘illegitimate benefits’ the limiting condition of related bribery crimes should canceled.Disputes over the nature of illegitimate benefits mainly compose the following three aspects.Firstly,‘securing illegitimate benefits’ relates to the necessary condition of bribery crimes or not.Secondly,‘securing illegitimate benefits’ belongs to the subjective constitutive requirement orobjective constitutive requirement. Thirdly, the problem involves how to locate ‘securing illegitimatebenefits’ specifically in constitutive requirements of crimes.The problem that whether securing illegitimate benefits is the constitutive requirement of briberycrimes has been specifically specified by Chinese laws and judicial interpretation, i.e.,‘securingillegitimate benefits’ is the necessary requirement of the said bribery crimes. Therefore, the disputes onits existence or abolishment are mainly implemented in the theory circle of criminal laws, whosepurpose is to form some suggestions for legislation, perfect specifications of legislation as well as guidejudicial practice. Theoretically, there are three opinions, that is,‘abolishment’,‘persistence’ and‘reform’, among which ‘reform’ tending to keep the necessary requirement ‘securing illegitimatebenefits’ compromises between the first two opinions.The difference of establishment requirement between crime of offering bribes and crime ofaccepting bribes presents Chinese criminal policies temper justice with mercy, which is carried out bylegislation intentionally. Besides, it also reflects the principle of restraining criminal laws. Consequently,the limiting condition ‘securing illegitimate benefits’ cannot be cancelled in bribery crimes. However, inconstitutive requirements of mediating bribery crimes, from the perspective of ‘ought to be’, it isnecessary to cancel the restriction of ‘securing illegitimate benefits for entrusting person’. Instead, itshould be directly specified as ‘securing illegitimate benefits for others’ compared to bribery crimes.However, the author also agrees to establish an independent accusation for mediating bribery crimes andpunish such people with relatively light legal penalty.Regarding the problem that ‘securing illegitimate benefits’ belongs to the subjective constitutiverequirement or objective constitutive requirement, this thesis holds that ‘securing illegitimate benefits’ isa subjective constitutive requirement of bribery crimes but the objective constitutive requirement ofmediating bribery crimes.Considering the problem about the location of ‘securing illegitimate benefits’ in constitutiverequirements, there are divergences theoretically, i.e.,‘purpose theory’,‘motivation theory’ and ‘thecombination theory of purpose and motivation’, among which ‘purpose theory’ is the general opinion inthe theory circle of criminal laws.There are many opinions on the range of illegitimate benefits, such as ‘illegitimate benefits theory’, ‘unearned gain theory’,‘illegal method theory’,‘violating position theory’ and ‘compromising theory’,whose disputes focus on whether uncertain gains obtained by illegal methods is ‘securing illegitimatebenefits’ or not. This thesis deems that illegitimate benefits can be concluded as ‘gains with illegalpurposes’ and ‘gains with illegal processes’. Besides, uncertain gains obtained by illegal methodsbelong to ‘securing illegitimate benefits’.In judicial practice, the identification of illegitimate benefits in bribery crimes also needs to payattention to some specific problems, for example, the objectivity of identification standard forillegitimate benefits in bribery crimes. Furthermore, there are also some disputes about the shape ofquantity-in-crime of illegitimate benefits, such as ‘theory of plural crimes in nature’,‘implicatedoffender theory’ and ‘ideal coherent crime theory’. However, this thesis cannot absolutely advocate oneof them.