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Bribery is an important part of corruption crimes, and bribery is also a complex social problem. It should refer to the state that things should achieve, and only the rigid, standardized, and legalized "bribery investigation together" can improve the accuracy and effectiveness of punishing bribery, so as to form a strong deterrent to bribery.
Background EventsOn December 29, 2023, the Seventh Session of the Standing Committee of the 14th National People's Congress voted to pass the Amendment (12) to the Criminal Law, which will come into force on March 1, 2024. Amendment (12) to the Criminal Law has a total of eight articles, further revising and improving the provisions on the crime of bribery, increasing the punishment of bribery, and providing for seven circumstances for heavier punishment. (** News published on the Internet).
BriberyIt means that a person who gives money or property to a state functionary for the purpose of seeking improper benefits is guilty of bribery. In the course of economic exchanges, those who violate state regulations by giving property to state functionaries in relatively large amounts, or who violate state regulations by giving state functionaries kickbacks or fees in various names, shall be punished as bribery.
[Law. Release].
1. Bribery must be subjectively forSeeking improper benefits, regardless of whether they have been obtained or not.
@什么是不正当利益?
entity violationsIllegal benefits: The benefits that the bribe giver seeks are in violation of laws, regulations, rules, or policies.
Procedural violationsIllegal assistance: The bribe giver asks the **person to provide him with illegal assistance and facilitation.
Violating the principles of fairness and justiceSeeking competitive advantage: seeking competitive advantage in economic (bidding and bidding, procurement and other business activities), organization and personnel management and other activities.
@不属于行贿的情形For legitimate and definite interests, they are legitimate interests, for example, legally settled construction costs, payments that should be paid in commercial contracts, etc., are legitimate interests.
1. Giving property to state functionaries for the sake of legitimate interests does not fall within the scope of the crime of offering bribes.
2. Giving money or property to a state functionary because he is extorted without obtaining improper benefits, it is not a bribe.
2. In practice, the punishment for bribery is weak.
In judicial practice, the punishment for bribery is significantly lighter than that for the crime of **The lenient penalties for bribe-givers are mainly due to the following reasons:
1. The traditional concept of "heavy first, light bribery" is deep-rooted. Although in the relationship between "hunting" and being "hunted", the bribe giver has the initiative, but fundamentally speaking, it is carried out by the person who holds the power. Therefore, the responsibility of ** should be appropriately heavier than bribery, so as to reflect the principle of proportionality of criminal responsibility and punishment. As a result, some case-handling organs have focused their work on punishing the crime of bribery, while relatively ignoring the investigation of bribery cases, and the means of punishing the crime of bribery stipulated in the Criminal Law have not been fully used.
2. There is a bias in the implementation of the criminal policy of blending leniency and severity in bribery cases, because the crime of bribery is a "one-to-one" crime, and the verbal evidence of the bribe giver plays a key role in the investigation and handling of ** cases. In order to break through the "offensive and defensive alliance" between the two sides, evidence such as confessions is especially needed. In the course of investigating and handling bribery cases, the case-handling organs promise to the bribe giver that they will basically not pursue criminal responsibility in exchange for the bribe-giver's confession of the bribery facts. As a result of this incentive, bribery cases are generally handled with leniency.
[Amendment (12) to the Criminal Law].
The necessity and reason for the amendment of the crime of offering bribes:
1. Zero tolerance for bribery, with emphasis on strict investigation and punishment of bribery.
Bribery is one of a kindSexual offencesThe two are interdependent and mutually causal. In order to tackle corruption at the source, it is necessary to resolutely crack down on the crime of bribery. ** Bribery is investigated together" highlights the requirement of a "zero tolerance" policy against corruption.
In September 2021, the "Opinions on Further Promoting the Joint Investigation of Bribery" was issued, and the policy of comprehensively and source-based punishment of bribery and corruption crimes was more specific and policy-oriented, and the joint investigation of bribery was adhered to.
Amendment (12) to the Criminal Law revises and adjusts the statutory penalty for the crime of bribery, overcoming the substantive defects of the Criminal Law's provisions on the punishment of bribery, realizing the "equal treatment" of the crime of "two bribes", and facilitating the application of the punishment for the crime of bribery.
2. The old legal expression gives people the impression thatThe statutory penalty for the crime of offering bribes is higher than the unreasonable phenomenon of ** crime.
The basic statutory penalty for the crime of offering bribes under the original legal provisions is "fixed-term imprisonment of not more than five years or short-term detention and a fine", and the basic statutory penalty for the crime of ** is "fixed-term imprisonment of not more than three years or short-term detention and a fine", which is unreasonable.
Therefore, the provisions on the punishment of the crime of bribery in Article 390 of the Criminal Law are revised and improved, and the starting point and punishment level of the crime of bribery are adjusted, "those who commit the crime of offering bribes shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and a fine", which is connected with the crime of ** and matches the sentencing of the crime of **, which is better connected and logical.
3. The sentencing of the judicial organ for the crime of offering bribes must be lower than the sentencing of the corresponding ** crime.
The amendment does not abolish the mitigation clause for the offence of bribery. In view of the particularity of bribery cases, the theory of the "prisoner's dilemma" should be appropriately applied, and the bribe-givers who actively cooperate with the investigation should be given a greater leniency to encourage the bribery to be exposed, and the criminal policy is reasonable.
Where the bribe giver voluntarily confesses the bribery before being prosecuted, the punishment may be mitigated or commuted. Of these, where the crime is relatively minor, where it plays a key role in the breakthrough in the investigation or the detection of a major case, or where there is a major meritorious service, punishment may be commuted or waived. ”
4. Further accurately and properly delineate the circumstances for heavier punishment for the crime of offering bribes:
The amendment determines that the punishment of bribery that will be investigated and dealt with will be further strengthened in legislation, and a new paragraph is added: Seven types of situations in specific circumstances, specific targets, and specific fields shall be severely punished
Conclusion:Any law must have a basis, otherwise it will be unexplainable and meaningless. Improve legislative revisions to the crime of offering bribes, clarify relevant criminal law concepts and perspectives, and better implement the principle of legality for crimes.
(Author: Wang Honglawyer [Law as the Sword] Yunnan Hengzhi Law Firm).
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