A Study On The Criminal Law Of The Act Of Intercepting Bribes

Bribery is usually difficult to be discovered because of its concealment.Under the cloak of "protection" of bribery crime,the act of intercepting bribes is more concealment,and most clients choose to remain silent because of their own improper behavior.Therefore,for a long time,both the theoretical and practical circles have not formed a unified nature of bribe-intercept behavior.In recent years,with the intensification of anti-corruption efforts,the act of intercepting bribes is more and more in front of the public.Because of the lack of a unified qualitative,the practice circle can not make a unanimous judgment on this behavior,but also caused a lot of controversies and discussions in the theoretical circle.The article is divided into four parts。The first part discusses the conceptual issues of the behavior subject,behavior mode,behavior object and so on.The subject of bribe-intercept is not required to have the status of state staff.The behavior mode of bribing is "holding back",which can neither be directly equivalent to the concept of possession in civil law nor the behavior mode of embezzlement crime in criminal law.The object of bribe-intercept behavior can be summarized as other bribery property and property interest except the property interest with personal exclusive property in the bribery crime.On the basis of clarifying the conceptual problems of bribe-intercepting behavior,whether the bribe-interceptor knows that the property he is dealing with is a bribe can be divided into "knowing-type bribe-intercepting" and"unknowing-type bribe-intercepting".The second part starts with the case and leads to the thesis.Looking at the listed cases,in practice,there is a case of being treated as the crime of fraud,the court will intercept the bribe behavior and the fraud in the case are convicted as the crime of fraud.There are some cases according to the crime of embezzlement,such as Zhang bribery,embezzlement case.The court distinguishes between the act of offering bribes and the act of intercepting bribes.The act of intercepting bribery funds and refusing to return them is deemed to be the act of embezzling bribery funds,which constitutes the crime of embezzlement.There are some cases that do not have separate convictions.The act of intercepting bribes is defined as the circumstances of introducing the punishment of bribery or the act of intercepting bribes is directly identified as the bribery crime that it is attached to.Very few courts still treat bribery as innocent,only as unjust enrichment in civil law.The third part focuses on the theoretical root of the dispute about the nature of bribe intercept.There are two reasons why the behavior of bribe-intercept cannot be classified accurately.First,the theoretical circles have not yet formed a unified view on the nature of the payment for illegal reasons and the nature of the entrustment for illegal reasons.Second,the existence of illegality criteria.On the basis of the above problems,the Chinese theorists have some views on the nature of bribe intercept,such as the theory of innocence,the theory of not being convicted separately and the theory of property crime.Innocence holds that the illegality of bribe-taking cannot be considered a crime at all.Some scholars do not evaluate the act on the basis of illegal reasons,and some scholars think that it constitutes unjust enrichment in civil law.The theory of non-conviction not only denies the theory of innocence,but also thinks that the act of bribe-cutting depends on the crime of bribery.It occurs in the process of bribery crime,and it is a link in the process of bribery crime,so it can be treated as a crime of bribery.The theory of property crime divides the act of bribe-cutting into the crime of swindling and the crime of embezzlement from the aspects of execution,infringement of legal interests and the object of the act.The fourth part focuses on the reasonable classification of bribe intercepting behavior.It is particularly important to classify and define the nature of bribe interception reasonably under the circumstance that the practice and theory circles have great disputes on the behavior of bribe interception.On the basis of the above"knowing-type bribe-taking" and "unknowing-type bribe-taking","knowing-type bribe-taking" can be divided into joint crime type and association type.In the type of joint crime,the act of accepting bribes in the type of accomplice in taking bribes constitutes the crime of accepting bribes or embezzlement.The act of bribing accomplice constitutes the crime of embezzlement.Under the classification of associative bribe-cutting behavior,the bribe-cutting behavior in the process of introducing bribery constitutes the crime of embezzlement.Taking advantage of influence to accept bribes constitutes the crime of embezzlement.In the type of"unknown bribe-intercept",both "transferred bribe-intercept" and "Untransferred type of bribe intercepting behavior" are identified as embezzlement crime.