Researches On Joint Investment Bribery

Under the current high-pressure situation of anti-corruption in our country,there are still part of some national staff taking chances to take bribes and ask for bribes,but they are afraid of the consequences that once they are investigated and dealt with.Therefore,they will not adopt the more apparent and naked way of accepting bribes and soliciting bribes in the past.Instead,they are inclined to take some more covert ways that appear to be legal and compliant,such as cooperative investment,emotional investment,and so on.The intention is to cover up the nature of the power and money transaction and evade punishment The emphasis of this thesis is the research about the cooperative investment bribery.With regard to this type of bribery,the notice "Opinions on the Application of Law in Handling Criminal Cases of Bribery" published and implemented by Lianggao on July 8,2007 has made the related provision,but this provision is not comprehensive.In other words it does not cover many situations in judicial practice and brings a lot of problems worth discussing in judicial practice.This thesis takes the cooperative investment bribery crime as the research subject,which will be analyzed in the four aspects as follows.The first part is an brief and general introduction of the cooperative investment bribery crime.In the first place,it first gives an illustration of the new situation and causes of the bribery crime in our country and in the second place it explores the definition and development origin and reform of the cooperative investment bribery crime.At last it make a generalization and summarization of the characteristics of cooperative investment bribery such as its concealment feature,the falsity of investment capital,the firmness of investment income,the inequality of investment subjects,and the continuity of benefit transmission between cooperative investors and combs the unique part of the elements about the crime constitution of cooperative investment bribery.Through reading this part,the readers can form a general overview of the cooperative investment bribery in their mind.The second part is the analysis of the types of cooperative investment bribery.This part makes a specific analysis of the four types of possible behaviours of the national staff that may appear in the cooperative investment bribery.The first category is neither actual capital contribution nor participation in management and operation-In this occasion,this situation is determined that there is no dispute over bribery.The second category is capital contribution but does not participate in management and operation.It focus on the analysis of the three situations in which the capital contribution can be made use of the functions and powers,the proportion of dividends in excess of the capital contribution,and the entrusting person to advance the funds for the state stuff;the third category is not capital contribution but participation in management and operation,which mainly depends on whether the management and operation has made use of the functions and powers and whether the dividends has exceeded the proportion of capital contribution;the fourth category is both capital contribution and participation in management and operation,which focuses on whether to make use of their functions and powers and whether they are over-proportional to dividend.Among these four cases,only the first category can be determined to constitute the crime of accepting bribes,and whether the other three kinds of situations can constitute the crime of accepting bribes should be analyzed and judged according to the specific situation.In the latter three cases,the state functionaries can basically be recognized as accepting bribes by making use of the convenience of their posts and exceeding the proportion of capital contribution,but except for this situation,the rest of the cases should not be recognized as bribery according to the existing criminal law theory and legislation.In the final analysis,whether the national staff make use of the convenience of their position to seek benefits for others and accept bribes from others,or ask for bribes from others,should be based on the essential characteristics of the transaction of power and money in the crime of accepting bribes to conduct the judgement.The third part is the judicial identification of cooperative investment bribery,whose main purpose is to try to confirm a set of effective methods to determine whether cooperative investment type bribery is established in the judicial practice with the aim to achieve the qualitative and accurate identification in order not to identify the ordinary cooperative investment behavior as cooperative investment bribery.Cooperative investnent bribery and common cooperative investment both have their own remarkable characteristics,and accurate identification of their characteristics is the prerequisite for accurate characterization.After the confirmation of the crime of cooperative investment bribery,on the one hand,we should accurately identify the amount of bribery,because of the fact that the amount of bribery is related to the conviction and sentencing of the crime of bribery.On the other hand,we should find out the standards and criteria of accomplished and attempted bribery of cooperative investment,with the aim to achieve the sentencing of the state personnel objective and fair,letting national staff not be wronged or get away from punishment.The fourth part is the effort made to achieve the perfection of the judicial interpretation and precautionary suggestions of cooperative investment bribery.In this part,on the one hand,the author wants to further clarify the behavior types of cooperative investment bribery and the calculation methods of the amount of bribery and clarify the system of legal and judicial interpretation of bribery crime by improving related judicial interpretation of cooperative investment bribery,whose aim is to have the law to be abided by as far as possible in the judicial practice,and maintain the unification and the authority of the judiciary.On the other hand,with the adherence to the concept of prevention and combination of prevention and treatment for bribeiy crimes such as cooperative investment bribery,this thesis puts forward some suggestions from the aspects of improving the wage income of state staff step by step,publicizing property,increasing punishment for bribery and strengthening supervision.