Research On The Problems Of The Introducing Bribe Crime

With the strength and intensity of the Communist Party of China and Chinese government in fighting corruption continuing to increase, the form of bribery crimes tends to be more covert and indirect, and a growing number of bribery crimes are committed through the "power brokers". "Power brokers" refers to the bribery agent who communicates between two sides and brokered bribery. In the criminal law, power brokers are also called the person who introduces a bribe. The existence of bribery intermediary makes bartering more subtle, professional, which seriously disrupts the economic market, causes a lot of social injustice and makes the party and the government’s anti-corruption work more complex and difficult. In order to regulate the phenomenon of power brokers, the criminal law regulates the crime of introducing bribe in Article 392. It highlights the attitude of our country to punish the bribery. But considering our judicial practice, the applicable rate of the introducing bribe crime is low. The reason is partly aroused in the difficulty in finding the crime, collecting the relevant evidence and determining the nature. The other reason is that there are a lot of problems remaining to be resolved in introducing bribery area.These two reasons contribute to the fact that to avoid controversy, the judiciary mostly avoids this crime. The court either treats bribery introducer as the helper of bribery crime, or treats it as non-committer. In order to make better use of the criminal law to help governing the bribery intermediary, it’s essential to make profound research and reach a consistent conclusion of the difficult problems that exist in the field. This article makes search of the following problems: whether introducing crime should exist; the controversial questions about the constitutions of the crime; the boundary of the crime and relevant crimes; the stopping forms of the crime; the amount of the crime. I will put forward my own opinion on the above problems based on the research of the academic circle.The introduction presents the background and research significance of this paper, clarifies the urgency and necessity of studying the problems of introducing bribery crime and defines the relevant conception that used in the writing the paper. It also studied the problems of the crime existing in the theoretical area and pointed out the research ideas and research contents.The text includes four chapters. The first chapter introduces whether introducing bribery crime should exist. After analyzing the opinion of relevant author, the article studied the independent value of introducing bribe crime from the perspectives of legitimacy, necessity and rationality. Although China’s current criminal law in Article 392 regulates the crime separately, dispute about the introduction abolition has never stopped since 1988. It gradually formed three doctrines: Reservation, Abolishment and Trapping. The focus of the three theories is that whether the behavior of introduce bribery belongs to helping behavior, whether it should be treated as a separate offense. In essence, introducing bribery really belongs to helping behavior, but as to the discussion whether it can be treated as a separate crime of bribery, the key is not to see whether the introducing bribery behavior belongs to the helping behavior of bribery, but rather to see the value of treating it as a desperate crime. At present, bribery intermediary has become an important force to promote the spread of corruption. From the perspective of criminal policy, describing the existence of introducing bribery has an important role in the prevention and control of corruption. In order to make full use of the criminal law to strengthen the governance of the agency for bribery, treating introducing bribery as separate bribery crime has necessity. From comprehensive legal interests protecting point of view, the existence of introducing bribery has an important value for improving the system of bribery crime, striking legal network system, and there is no lack of criminal law legislation for some special cases of complicity in acts of individual conviction, criminal law conducts this particular individual convict of bribery as an independent crime has legitimacy. From judicial operability point of view, canceling introducing bribery will lead to a series of difficult legal application problems, and it is reasonable to treat the introduction bribery as a separated crime.The second chapter studies controversial questions about the constitutions of the crime, which mainly includes the following: whether a unit can commit a crime; whether the crime is an intentional crime; the fundamental forms of the crime; whether the establishment of the crime is based on the crime of giving and receiving bribes crimes.(1) According to the criminal law, the unit cannot be the body of introducing bribery crime. But with the development of bribery intermediary, especially the professional bribery company, it’s necessary to make the unit the body of the crime.(2)In accordance with the law interest violation theory, the nature of crime is the infringement of legal interests. The protected legal interest of introducing bribe crime is the non-purchasing of the officials’ duty behavior. As long as the actor introduces, communicates or makes a match between the briber and receiver, the he makes a contribution to the crime, and the legal interest of the crime is infringed. So It’s not necessary to consider the actor’s intention when judging whether the actor commits the crime, the crime is not an intentional crime.(3) Principle of Legally Prescribed Punishment’s requirement of definition is relative. The concept in criminal law cannot be so definite that it needs no explanation. To some extent, We have to accept the generalization of definition. So it doesn’t violate Principle of Legally Prescribed Punishment’s requirement of definition to explain “introducing bribes to officials” as including introducing the official to take bribes. Besides, the word “introducing” is bidirectional, which includes introducing of giving bribes and taking bribes.(4)There are affirmative doctrine and negative doctrine on whether introducing bribery should be on the premise of the establishment of the bribery in theoretical circle. It is not denying the fact that there is a close relation between introducing bribery and bribery, but we should not emphasize too much the relationship between introducing bribe conduct and bribe act and neglect that introducing bribe crime has its own social harm and constitution. Besides, the conviction criterion of the crime does not require the establishment of bribery crime. So the introducing bribery crime should not be based on the giving and receiving bribes crime.The third chapter focuses on the boundary of the introduction bribery crime and helper of bribery crime, the crime of mediatory-bribe and fraud. The essence of introducing bribery behavior is to make bribery happen. Regardless of its form, it will contribute to the parties of the bribery crime. So in essence, introducing bribe act is a kind of help to bribery crime. But we don’t have to treat introducing bribery as the help of bribery altogether. On the contrary, we should treat it differently. The theoretical circle and judicial practice have five standards on how to differentiate introducing bribe crime and giving and receiving bribes, namely, whether the actor has the intention to introduce bribe; whether the actor gets illegal benefit due to introducing bribery; whether the help of the actor is unilateral or bilateral; whether the actor takes part in the official’s act of using duty conduct to make profit for others;whether the crime of bribery has established, all the five standards have deficiency. To resolve the complicated problems in introducing bribery practice, we need consider comprehensively.The fourth chapter studies the stopping form and amount of the crime. In terms of the stopping form, the article compares the three standards on the accomplishment of the crime and puts forward that the accomplishment standard of the crime should be as following: the parties reach the agreement on the trade. The preparation and discontinuation of the crime is tenable, but it’s hard to find in judicial practice. Besides, their harm to the society is so little that it can be neglected. In terms of the amount of the crime, the article studies the following situation: the actor abets bribe while introducing bribe; the actor introduces bribe while mediating bribery; the actor Misappropriates or intercepts a part of the property while introducing bribe.The epilogue stresses the necessity of researching of difficult problems in the field of introducing bribery again, and makes a brief summary of the contents of this article, points out the shortcomings of the article and proposes the author’s expectations.