| Since the Criminal Law of the People’s Republic of China formally established the status of "seeking improper interests" as a component of bribery in 1997,the academic community and the judicial practice department have been working to clarify the correct meaning of "seeking improper interests".Theoretically,there are various theories such as the theory of illegal interests,the theory of undeserved interests,the theory of uncertain interests,the theory of improper means,the theory of breach of duties,the new theory of breach of duties and so on.But there are certain degrees of defects and loopholes.Due to the unclear scope of "seeking improper interests",the problems of paying accelerated fees,maintaining competitive advantages,and the qualitative nature of emotional investment behaviors in practice have not been well resolved.Therefore,the connotation and determination of "seeking improper interests" are necessary for research in both theory and practice.After combing through the existing criminal norms and thinking about the benefits and shortcomings of various doctrines,the author combined the common nature of power and money transactions in bribery crimes and the nature of the crime of bribery affecting the proper performance of state officials,deconstructed the content of Article 12 of the Interpretation of Several Issues Concerning the Specific Application of the Law in Handling Criminal Cases of Bribery promulgated by Supreme People Court and Supreme People’s Procuratorate in 2012,and proposed the "dual standard theory".While making up for the one-sided shortcomings of the aforementioned doctrine,it avoids objective condemnation of perpetrators.Aiming at the controversial issues such as the nature of "seeking improper interests" and whether the element is a constituent element of economic bribery,it is appropriate to position "seeking improper interests" as a subjective element,and from the perspective of system interpretation and comparative interpretation Judging from the above,the determination of economic bribery still needs to meet the requirement restriction of "seeking improper interests".Under the guidance of the "dual standard theory",some difficult problems in judicial practice can be solved: Where the "acceleration fee" and "facilitation fees" are given to national staff,because the "acceleration fees" and “facilitation fees" are paid to accelerate the realization of their legitimate interests,the act does not require the state staff to use improper means,which does not affect the proper exercise of powers of state officials,so it does not constitute a crime of bribery in principle;In the case of already having certain objective advantages,the behavior of maintaining the competitive advantage in order to fix the uncertain interests violates the procedural requirements for obtaining such interests,such as laws and regulations,and violates the principle of fair and fair competition,improperly excluding other competitors,which is "new improper means".This behavior,like "seeking" a competitive advantage,belongs to the category of "seeking improper interests" and should constitute bribery;The determination of "seeking improper interests" in the case of "emotional investment" should be comprehensively judged in combination with the following aspects: the amount of emotional investment,whether the money exchanges are related to the position of the national staff receiving the property,whether there is a positional interest relationship between the briber and the national staff. |
