Research On Judicial Determination Of Bribery Crime By Utilizing Influence

Corruption-based crimes have traditionally been a topic of great concern in various countries around the world.In order to strengthen the fight against corruption-based crimes,the crime of using influence to accept bribes is a new crime added to the Criminal Law Amendment(VII)in 2009.However,there are many difficulties in the application of this crime in the subsequent judicial practice.In order to make this law better applied and to guide the practice with theory,this paper will identify the problems arising from the application of this crime as well as the controversial points in the academic community by citing the typical cases on China Judicial Documents,and put forward our own views to solve the controversy.This paper will focus on the following parts.The first part is an introduction,which introduces the background,significance and main research methods adopted for the creation of the crime of accepting bribes by using influence.At present,although the establishment of this crime fills the judicial loopholes and improves the bribery crime system in China,there are still areas that need to be improved due to the vague definition of concepts and so on.The second part mainly focuses on the current situation of domestic and foreign legislation on the crime of accepting bribes through the use of influence,firstly,the legislative overview of some foreign countries,explaining its legislative background and legislative significance,secondly,the legislative overview,research status and problems of this crime in China,and finally,a comparative analysis of domestic and foreign legislation,and then a consideration of the legislative intent based on national conditions,and a search for factors or ideas that can be used to improve legislation and promote justice in China with a reference perspective.The third part mainly discusses the controversies of determining the subject of the crime of using influence to accept bribes.By citing cases in practice,the theoretical and controversial points that tend to arise in the application of this crime in practice and the views of scholars are analyzed.In this paper,we argue that the scope of "close relatives" in this crime should be consistent with the provisions of the Civil Code.The scope of "close relatives" is broader than that of "specific relatives",so it is important to grasp its characteristics and certification criteria,and to compare the differences between it and "specific relatives".A comparison is made between them and "specific associates".Finally,the concept and scope of "separated state employees" are discussed,as well as the question of whether serving state employees can be the subject of this crime.The fourth part mainly discusses the controversy of determining the object of the crime of using influence to accept bribes.By citing typical cases on the Internet,we analyze "influence" and improper interests in depth,and the view of this paper is that objective judgment and a combination of prior and subsequent judgment should be adopted to determine whether the perpetrator used his "influence".The paper’s view is that an objective judgment and a combination of ex ante and ex post judgment should be used to determine whether the perpetrator used his "influence.The specific connotation of undue interest is discussed,and the method of judging anticipatory interest is introduced.The fifth part of the report focuses on the connection and distinction between this crime and other similar crimes,and lists the similarities and differences between this crime and the crimes of complicity in bribery,introduction of bribery and fraud,and defines this crime and the other crimes.The major difference between this crime and the crime of introduction of bribery lies in whether the perpetrator has the intention to misappropriate the goods given by the requestor;the essential difference between this crime and the crime of complicity in bribery is whether the public official knows about the acceptance of the bribe by the person next to him or her and whether there is prior conspiracy between them;the major difference between this crime and the crime of fraud is whether the perpetrator,when accepting the property from the requestor,has the intention to benefit the requestor and The major difference between this crime and fraud is whether the perpetrator,in accepting the entrusted property,had the intention of benefiting the entrusted person and,by actual action,used his influence over the public official to match the entrusted person to complete the matter.