The Legislative Intention And Judicial Application Of The Amount And Circumstance Of The Crime Of Embezzlement And Bribery

The crime of embezzlement and bribery is a typical corruption crime,its actions seriously infringe on the national system of incorruptible government and the integrity of duty behavior,If the problem of corruption is growing more and more vigorously,there will be a serious obstacle to the social construction in the new period of China.The model of the quantitative factors for the crime of corruption and bribery is a long-term concern in the criminal law circle of China,it is related to the convictions and sentencing standards of criminal acts.With the revision of the criminal law amendment(nine)on the pattern of setting the quantitative factors of the traditional corruption and bribery crime,the state has strengthened the strength of the criminal law against corruption and bribery and perfected the criminal law of our country,providing a favorable legal guarantee for the future punishment of corruption.But the judicial interpretation has caused widespread controversy in the theoretical circle.In particular,the improvement of the standard of the amount of crime and the setting of the plot factors for the crime of corruption and bribery has caused a mixed opinion.This paper analyzed the legislative intention and judicial application of the amount and circumstance of the crime of embezzlement and bribery,mainly using the research methods of historical interpretation,comparative analysis,system interpretation and empirical research,then this paper put forward a view of the new quantitative model changed the thinking of Chinese traditional criminal law on the crime of corruption and bribery and it is beneficial to our country to fight corruption more scientifically and effectively in the future and the judicial interpretation is a deviation from the misinterpretation of legislation and its legislative intention.From the beginning of the founding of the people's Republic to the promulgation of the amendment of the criminal law(nine),the quantitative factor model of the crime of embezzlement and bribery has changed many times in China,with the developing of social economy,the standard of the amount factors also has changed,but the model that takes the amount as a core factor has not changed,and the embezzlement,like a tumor,often corrupts the body of the country for a long time.The criminal law amendment(nine)set a quantitative model for the amount and plot of the crime of corruption and bribery,raise the position of the plot factor to the same amount as the amount factor,amend the specific amount of the original penal code into an abstract amount,this reflects the progress of the state's rule of law and the determination to punish the crime of corruption.Compared with the governance model of corruption crime of the foreign countries under the rule of law,the setting pattern ofthe amount and plot embodies the characteristics of the rule of law in China and it is also the development of anti-corruption legislative technology.From the perspective of standardization,the crime of corruption and bribery is the damage to the code of conduct of public officials and the integrity of the public authority and it is not a purely property crime.The pattern of the amount plus plot more scientifically reflects the nature of the crime,and it is beneficial to guide the state staff to exercise the power given by the people in a reasonable way.On the premise of carrying out the criminal policy of zero tolerance and anti-corruption in China,the intention of legislation is to set amount add plot as a quantitative factor for the comprehensive evaluation of corruption and bribery to reduce the standard of conviction,to reflect the social harmfulness of crime in essence and increasing the strength of the criminal law against the corruption crime.After analysing the judicial interpretation and judicial application,there is a phenomenon of Judicial dissimilation of Legislation,the judicial interpretation determines the specific amount and raise the standard of incrimination of five thousand yuan to thirty thousand yuan,the circumstance does not have an independent position but still attached to the amount factor.In judicial practice,the circumstance did not achieve the effect of a comprehensive evaluation of the crime,on the contrary,it is the amount-centered traditional quantitative model.The role of judicial interpretation is to enable the judiciary to understand the spiritual essence and content of the law accurately,to ensure the accuracy of the law and to achieve the desired effect of the legislation,but the phenomenon of judicial alienation is not conducive to the realization of the principle of legality,and is not conducive to the effective radical cure of the corruption crime.Therefore,the present judicial interpretation should be fully conformed to the legislative intention,taking the criminal policy of anti corruption as the guidance,paying attention to the function of the prevention of criminal law,and the standard of amount should not be continued to increase while reducing the status of the amount factor.The judicial interpretation should give full play to the comprehensive evaluation function of the plot factors and the original meaning of the criminal law should be expressed as far as possible by judicial interpretation,and then it plays an active role in solving the corruption crimes such as corruption and bribery in our country.