An Empirical Study On The Sentencing Of The Crime Of Taking Bribery By Non State Employees

Compared with the governance of corruption crimes in state-owned enterprises such as corruption and bribery,the governance of corruption in non-public enterprises has always been in a weak position.In February 2016,the Supreme People’s Procuratorate issued the Opinions on Giving Full Play to Procuratorial Functions to Ensure and Promote the Healthy Development of the Non Public Sector Economy in accordance with the Law,proposing to "uphold equal protection of the public sector and non public sector economy,and strengthen judicial protection of the non public sector economy".Since then,the "two high levels" have successively issued a series of documents to strengthen the property rights protection of private enterprises,improving the criminal law crackdown on corruption crimes in private enterprises.As a typical corruption crime committed by private enterprises,the crime of bribery committed by non-state employees undermines the order of the socialist market economy.Its sentencing should meet the needs of cracking down on commercial bribery crimes and creating a fair business environment.The Criminal Law Amendment(XI)responds to the policy requirement of equal protection of corporate property rights and adjusts the statutory penalty for the crime of bribery committed by non state employees.This amendment has increased the penalty setting for bribery crimes committed by non-state employees by improving the statutory penalty setting and expanding the scope of application,highlighting the spirit of the state to strictly control corruption crimes committed by private enterprises,as well as its determination to severely crack down on commercial bribery crimes and strengthen the protection of property rights of private enterprises.In order to investigate whether the sentencing of bribery crimes committed by non-state personnel has been consistent with legislative requirements after the amendment,this article takes 1432 judicial documents from various parts of the country in the past three years as a sample,and conducts an empirical analysis of the sentencing situation of bribery crimes committed by non-state personnel from the aspects of principal punishment,additional punishment,and probation application.The study found that the judicial practice of the crime of bribery committed by non State functionaries deviated from expectations,mainly manifested in the fact that there were no substantive changes in the facts of the case and the circumstances of sentencing before and after the amendment of the Criminal Law,and the actual sentence announced after the amendment was reduced,resulting in a more lenient sentencing issue;Moreover,the newly added provisions are very chaotic in judicial application,with the "amount" standard and the "plot" element virtually non-existent and unable to exert their due impact on sentencing.Moreover,the amount of fines and penalties is low,and the phenomenon of cluster application is obvious;At the same time,the application of sentencing circumstances is relatively arbitrary,and there are problems of insufficient heavier punishment and excessive lighter punishment.After analysis,it is found that the reasons for the deviation of sentencing for bribery crimes committed by non-state personnel from legislative requirements are mainly reflected in the following three aspects: first,the amount of crime in most cases is relatively low,while the standard of conviction amount in the second and third grades of sentencing ranges is too high,resulting in many cases not meeting the requirements for promotion and sentencing;Secondly,due to the absence of relevant judicial interpretations,there is no unified applicable standard for the elements of "amount" and "circumstances",resulting in deviations in specific sentencing activities;Third,due to the lack of relevant sentencing guidance,some cases should be dealt with strictly but not strictly in practice.In addition,due to inadequate sentencing supervision,the procuratorial organ failed to promptly correct improper sentencing,resulting in a loss of leniency and severity in sentencing.In order to solve the problem of deviation in the sentencing of bribery crimes committed by non-state personnel,the following measures can be taken: first,reduce the sentencing standards for bribery crimes committed by non-state personnel,and further promote the equal protection of the public and non-public sectors of the economy;The second is to improve relevant judicial interpretations and introduce specific standards for the sentencing of bribery crimes committed by non-state personnel,such as stipulating what constitutes "serious circumstances",and clarifying the distinction between fine penalties within various sentencing ranges;The third is to strengthen sentencing guidance and supervision,regulate the discretion of judges,and then regulate the application of relevant sentencing circumstances.