Research On Judicial Identification Of Bribery Crime

Since the 18 th National Congress of the Communist Party of China(CPC),China has presented a dominant situation of anti-corruption repression.However,along with the intensified crackdown on bribery crimes,it also promotes the emergence of changes in the crime of bribery,resulting in a more complex,hidden and difficult investigation trend.On the issue of bribery in social donation,Article 16 of the Interpretation of Several Issues concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery issued by the Supreme People’s Court and the Supreme People’s Procuratorate in 2016,stipulates that the crime of bribery will not be affected if the bribed money is used for social donation after accepting others’ property on purpose.However,it cannot cool down the heated debates about this issue.For example,in two similar bribery cases involving donations,the courts have different rulings,resulting in different opinions of subjective elements and whether pious deeds can be ruled as bribery content in criminal law.According to the second paragraph of article 385 of the criminal law,it can be inferred that the subjective elements of bribery is to possess the property of others illegally.There are three theories about the subjective elements of bribery in the academic circle,that is,disposition theory,application-oriented theory and nominal theory,and after comparison,nominal theory is more economical in practice.As for the influence factors of bribery intention,the scope of the relatives shall be subject to the criminal procedure law,and people with common interests should be limited to those with economic relations.When belongings are only possessed by a person but not the civil servers,his near relatives or an acquaintance with common interests,it shall not be convicted of bribery.In view of whether pious deeds can be ruled as bribery content in criminal law,this paper introduces three opinions of bribery contents,namely property theory,property interest theory and interest theory,and the interest theory best conforms to the essence of the bribery.Considering the provisions on bribery in other non-criminal legislation,it is suggested to replace property with interests,benefits or property in the original provisions of the criminal law.Then relevant judicial interpretations are issued to supplement and improve the provisions of interest quantification.Grasping the essence of power transaction of bribery,the rulings are supposed to focus on the violation of duty integrity of civil servers and the degree of loss to the society.