The Promotion And Application Of The "actual Control Theory" Of The Standard For Attempted Briber

The crime of accepting bribes is one of the most concerned duty crimes of the public,and has always been the focus of the anti-corruption work to prevent and combat.With the development of economy and society,new forms of bribery are more complicated and covert.In order to avoid supervision,investigation and judicial investigation,the bribery parties often renovate various means,which makes the characterization of the attempted new bribery behavior a difficult problem in the practical field.In practical cases,the new situations of the characterization of bribery attempts emerge in endlessly,both in theory and in practice,when dealing with them,obstacles frequently occur.Based on this,it is really necessary to make an in-depth study on the characterization of the attempted bribery crime,especially the new difficult bribery behavior.This paper first discusses the controversy and basis of the nature of the crime of bribery as an attempted crime.It lists two controversial practical cases,which are not individual cases,but common problems in determining the nature of attempted bribery in practice.It can be said that the determination of attempted bribery is always the difficulty in practice.Among them,the key is the difference in the concept of the qualitative problem of attempted bribery,and the different understanding of the criteria to be adopted for qualitative determination.In practice,how to determine the nature of the problem of attempted bribery needs to find a normative basis.This paper analyzes the normative documents of the judicial authorities on bribery in detail.Based on the analysis of the current judicial documents and relevant cases,"actual control of property" has become the basis for judging the accomplished and attempted bribery in judicial practice.After systematically analyzing the nature of the attempted bribery crime in the normative documents,we need to focus on the basic theory and related theories of the attempted bribery crime.The accurate understanding and grasp of the basic theory of attempted bribery is the premise of the characterization of attempted bribery.Only by mastering the basic theory of attempted bribery,can we analyze the qualitative standard of attempted bribery thoroughly and accurately.In the aspect of the basic theory of attempted crime,this paper analyzes the three theories of the qualitative existence of attempted crime,namely,the purpose theory,the result theory,and the element theory.There are also some theories on the attempted standard of bribery crime.This paper expounds the theory of acceptance and acquisition,the theory of seeking benefits,the theory of commitment,the theory of superposition of acceptance and acquisition and seeking benefits,the theory of choice between acceptance and actual loss,and the theory of staged behavior.In practice,this paper advocates the "actual control theory",which is based on whether the actor actually controls and controls the bribery property given by the briber.The author chooses a typical new type of bribery case in the practical field to deeply analyze the application of "actual control theory" in the characterization of bribery attempts.As for the bribery behavior of accepting houses,it should be fully analyzed whether the actor actually has actual control and control over the houses involved.According to the specific situation in practice and the property right registration of the house,the bribery behavior of accepting real estate is analyzed in detail according to the specific situation;There is a great controversy in accepting bribes of IOUs.The rights and interests recorded in the IOU are actually a kind of expectable rights and interests,which are different from the property visible in reality.To analyze the attempted forms of accepting bribes like IOUs,we need to go deep into the nature of the case and grasp and analyze it with the "actual control theory";In practice,it is not uncommon for bribers to send bank cards,which have the advantages of concealment and portability.Because of the particularity of the bank card as a financial instrument,there is a dispute on the attempted characterization of bribery in practice.This paper argues that when a natural person has the conditions to claim creditor’s rights against the bank,whether or not it actually withdraws and transfers money,the natural person has substantially controlled the money in the bank card;In the bribery of the type of accepting dry shares,if the briber has handled the corresponding equity transfer for the actor,such as industrial and commercial change registration,and has registered the equity under the name of the actor,it should be characterized as successful bribery,and the actor gives actual control over the dry shares.However,both sides of the briber are worried that the case will be found out,and generally will not handle the equity transfer.If the actor does not handle the equity registration,it shall be discussed according to the "actual control theory".