| When it comes to bribery crime,looking at the world,this crime is a crime that has existed since ancient times and has been forbidden repeatedly.Because of this,it has been widely concerned by the criminal legislators,the judiciary and scholars all over the world.Bribery crime is a crime of great harm to society,which seriously affects the healthy political development and stable economic operation of a country.In recent years,under the background of our country’s increasing degree of attack and prevention of bribery crime,the legal norms and social system are gradually improved and updated.Nowadays,China’s criminal law not only stipulates the general situation of bribery crime in Article 385,but also stipulates a special situation of bribery crime in the first paragraph of article 388-mediate bribery crime.To put it simply,the crime of mediating bribery refers to the act that a state functionary,after accepting a request from a client,finds that the handling of the request does not fall within his own scope of authority,so he or she makes use of his or her own authority or the convenient conditions formed by his or her position,through lobbying and mediating other state functionaries who do not have subordinate relations,to make them voluntarily use his or her own position to seek profits for the client A crime of taking bribes from or asking for bribes from a client.The legislation of mediating bribery crime in our country is not accomplished overnight,and it has gone through a long process since the founding of the people’s Republic of China.During this period,it is also gradually improved and developed on the basis of learning from the advanced legislative experience of ancient and modern China and foreign countries.After consulting the laws and regulations,we found that the crime of mediating bribery was stipulated in the relevant criminal legal documents as early as 1989 In 1997,it was formally included in the scope of criminal law regulation,and with the adoption of the amendment to criminal law(7)and the amendment to criminal law(9)by the Standing Committee of the National People’s Congress,some new provisions on mediating bribery crime began to be implemented,which has important legislative significance.However,we also found that with the continuous changes of social life and the in-depth development of anti-corruption actions,more hidden forms of bribery began to appear in our daily life,making the first paragraph of article 388 of the criminal law slightly weak and inadequate in regulating mediation bribery crime,and some difficult problems also need to be solved,for example,the convenience conditions for the formation of "my authority or status" "How to grasp it correctly,how to identify the "illegitimate interests" correctly and so on.This paper will use empirical research,comparative analysis,case analysis and other research methods,starting from the basic content of mediating bribery crime,to the objective elements of the crime and the identification of special crime forms,etc.,and then make a brief summary of the difficulties related to judicial identification of this crime.In terms of writing methods,this paper will combine the judicial practice cases and through detailed legal theoretical analysis to accurately define the scope of application of this crime,clarify the boundaries between crime and non crime,and put forward personal views and opinions,so as to make positive contributions to the judicial staff of our country to accurately understand and grasp the relevant provisions of mediating bribery crime.In addition to foreword,literature review and conclusion,this paper is divided into four chapters,mainly including the following contents:The first chapter is mainly "Introduction".This part will put forward the main difficult issues to be discussed and studied in this paper,guided by the typical cases in the recent judicial practice found in China judicial documents network.At the same time,this paper will also briefly introduce the background and significance of this crime,so as to better understand the historical background of this crime and lay a good foundation for subsequent discussion.This part mainly plays the role of leading out the topic of this paper.The second chapter will mainly focus on the analysis of "the legislative evolution and the legal connotation of mediating bribery crime".In order to study the crime of mediating bribery in depth,it is necessary to interpret and analyze the basic concept of the crime,which is an essential step and procedure.Based on the legislative development process of mediating bribery crime in China from ancient times to now,especially since the founding of the people’s Republic of China,this paper briefly summarizes and analyzes the independent crime disputes existing in this crime.At the same time,it is necessary to elaborate the connotation of the article of the crime of mediating and accepting bribes stipulated in the criminal law,so as to provide basic theoretical guarantee for the following specific analysis of the objective elements of the crime of mediating and accepting bribes.The third chapter will focus on the theme of "identification of objective elements of mediating bribery crime",and focus on the difficulties of this crime.In our opinion,the disputes and difficulties in the constitution of the crime of mediating and accepting bribes are mainly reflected in the objective constituent elements.As for the subjective constituent elements of the crime and the subject of the crime,which are not controversial or even controversial but clearly stipulated by law,the actual discussion is of little significance,so limited to the length of this article,no detailed analysis and comments are made here.At the same time,we find that the disputes and difficulties of the objective elements of mediating bribery mainly focus on two aspects:the official elements(the convenience conditions for the formation of one’s authority or position)and the elements of seeking profits(improper interests).It can be said that the above argument is also the main difference between this crime and ordinary bribery crime,which is also the focus of this paper.The comparison between this crime and the crime of taking bribes by using influence is also worth a little discussion.This paper will also make a simple analysis to grasp the differences between this crime and similar crimes.The fourth chapter focuses on" the identification of the special criminal form of mediating bribery crime".Because there are few researchers in this part,this part is the finishing point of argumentation of mediating bribery crime.This part will mainly introduce a series of common difficulties in judicial practice,such as accomplished and attempted crime and joint crime,which are typical and worth discussing in the special criminal form of mediating bribery crime.This paper will sort out the above problems,try to clarify the special criminal forms of this crime,and try to draw the boundaries between accomplished and attempted,crime and non crime,so as to provide reference for the majority of judicial staff to accurately identify the special criminal forms of this crime and correctly apply the penalty in the daily trial of cases. |
