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Research on the basis of commercial bribery crimes_4561

By Keith Morales,2014-10-31 18:21
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Research on the basis of commercial bribery crimes_4561

Research on the basis of commercial bribery crimes

     Summary In this paper, the broad and narrow commercial bribery commercial bribery carried out research analysis that should be established the concept of commercial bribery in the narrow sense, as

    distinct from the concept of public bribery. China's current crime of commercial bribery, including commercial bribery and commercial bribery, in which "bribe" to the property interests of the scope of that as a benchmark, but should be extended and some of the non-property interests;

    their crimes constitute the "Elements of seeking interests" must be preserved ; rebates, fees behavior, regardless of how its subject should be classified as commercial bribery; doctors received "red packets" should

    be based on professional ethics to adjust and should not be defined as taking bribes or the business of accepting bribes. This article also legislation on commercial bribery refinements were discussed.

     Key Words commercial bribery / commercial bribery scope / seek benefits for the elements / rebates, fees / Legislative Improvement

     After World War II, as the global economic integration, the spread of transnational bribery, showing the trend has aroused wide attention from

    the international community. October 31, 2003, "United Nations Convention against Corruption" (hereinafter referred to as "the Convention") at the 58th session of the United Nations General Assembly adopted in December the same year, the convention in Merida, Mexico at the International Anti-

    Corruption Conference open to all States sign. To commemorate the signing of the Convention, the international community to draw attention to the problem of corruption, the United Nations every year December 9 to

    establish the International Anti-Corruption Day. "Convention," a total of

    71, divided into eight chapters. Its previous three chapters on the public bribery and commercial bribery crimes hazards, definitions and measures and other issues in detail provisions. October 27, 2005, the NPC Standing Committee in section 66 "Settlement of disputes", paragraph 2, the case of reservations, ratified the Convention, the same year, December 14, "the

Convention" on China's entry into force.

     First, the concept of crime of commercial bribery, to clarify the

     January 6, 2006, in the Central Discipline Inspection Commission, on the sixth meeting, General Secretary Hu Jintao pointed out: "We should seriously carry out management of the special commercial bribery, and

    resolutely rectify improper trading practices, prosecute cases of commercial bribery." The State Council, Four Independent Work Conference emphasized the need to carry out specific work as the management of commercial bribery in 2006 the focus of anti-corruption, focusing on

    treatment project construction, land transfer, property rights transactions, buying and selling medicines, government procurement, as well as the areas of resource development and distribution of commercial bribery in . In response to the decision of the CPC Central Committee and the State Council, the country launched a special campaign to control commercial bribery. Because of commercial bribery crimes is not a statutory charge of our country, but also because of the criminal policy,

    macroeconomic, and scholars from different levels of understanding of commercial bribery, commercial bribery has done a variety of interpretations, resulting in ambiguity of the concept of crime of commercial bribery and even misunderstanding it is necessary to be

    rectified.

     (A) general commercial bribery, bribery, crime and public officials

     With regard to the definition of the concept of commercial bribery offenses generally are 4 kinds of view: One view is that commercial

    bribery is defined as the operator in order to obtain favorable trading opportunities or terms of trade rather than local benefit given to the relevant units or individuals, or are closely related to commercial activities people might take advantage of its favorable position in which,

    improperly accepting benefits of operators behavior. In this sense, the commercial bribery is not a professional term, nor is it specifically refers to an act, but rather refers to two types of acts: acts of commercial bribery and commercial bribery. [1] 9, another point of view, in the commercial activities, the operators for the purchase or sale of goods, or provide or receive services in violation of state regulations, giving the unit or use of personal property or other interests of the

    commercial bribery. Although commercial bribery took place in business, trade and investment fields, but due to the Government's current social and economic management of all areas of life play an important role, and thus China's commercial bribery outstanding performance as the main business activities with the national staff use their right to engage in money transactions. [2] 1689 A third view is that commercial bribery refers to the commercial interests of market participants to seek deliberately to adopt various means of bribery against the normal market order. [3] 5 The fourth view is that commercial bribery should focus on the areas of bribery formed the concept that the bribery took place in

business is commercial bribery; while the nature of criminal law are

    mainly based on the difference between the main provisions of a variety of different bribery and bribery. Therefore, commercial bribery and commercial bribery in the Penal Code is not the one on the corresponding provisions, but several provisions. In other words, commercial bribery, commercial bribery, commercial bribery are not criminal law concepts. Commercial bribery is not a criminal sense of the kind of offense, nor is it a separate criminal sense of the types of crime. Therefore, not only

    totally unnecessary and should not be discussed in criminal law sense, the so-called "commercial bribery" Elements of the crime (commercial bribery, the concept of the negative theory of the Criminal Code). [4] 5

     The first three point of view, commercial bribery took place in the commercial area of bribery, including commercial activities, the main advantage of his position with the national staff engaged in money, the general sense of the crime of bribery. Therefore, its commercial bribery

    is defined broadly. The fourth view is that whatever occurred in the business of giving and receiving bribes and introduced the phenomenon of bribery, can be referred to as commercial bribery, commercial bribery is not a criminal sense, independent types of crimes, should not discuss

    their meaning in criminal law constitutes a crime . Based on this, this view pointed out: "Since the Criminal Code does not provide for the so-

    called crime of commercial bribery, criminal law theory, can not and should not be fabricated out of the so-called composition elements of the

    crime of commercial bribery. On the other hand, due to China's criminal law provisions of the various bribery crimes a more comprehensive, even from the legislative point of view, do not have to be added the so-called

    crime of commercial bribery. Therefore, the judiciary staff need to know is the criminal offense of bribery under the laws of various benefits and the constituent elements, and then determine whether the facts occurred in the real comply with the provisions of the criminal law the composition of elements. because they have left the provisions of the Penal Code, to establish a separate commercial bribery offenses constitute the elements, and then based on the so-called Elements of the crime of commercial

    bribery guilty would inevitably violate the principle of legality. In addition, the judiciary can not be because of in full swing nationwide commercial bribery of governance of the special work on neglected the other areas and bribery investigation. "[4] 5-6 this point of view

    starting from the provisions of the Criminal Law look at the issue, but also in line with our existing commercial bribery a criminal policy, the reality, of course, has its own rationale, its essence is still a broad

    concept of crime of commercial bribery, but it did not further explore the precise definition of commercial bribery crimes.

     So, what is commercial bribery in the end? "Oxford Dictionary of Law" will be "commercial" is interpreted as: "commodity exchange and with all

    activities related to commodity exchange." Commerce and profit are closely associated, and therefore to a certain extent, commercial activities can be understood as economic activity, but The concept of commercial activities is greater than the economic activities, such as theatrical performances can be divided into commercial sexual performances and public

    good performances, sporting events can be divided into commercial games and public good games, and so on. As a result, according to China's

    criminal policy, the broad commercial bribery crime is an economic activity and commercial activity in the bribery crime is a commercial activity in the giving and receiving bribes, introduced the general term for bribery crimes, including some public officials and bribery (including the occurrence economic activities in the public service in the commercial bribery), and purely commercial bribery. Specifically, including the Central Discipline Inspection Commission of six plenary sessions and the

    work of the State Council, integrity and rectifying Conference to determine the scope of commercial bribery, namely, construction, land transfer, property rights transactions, buying and selling medicines, government procurement, resource development and distribution areas of

    business bribery, as well as the publishing and distribution, bank credit, securities and futures, commercial insurance, telecommunications and other aspects of commercial bribery. In other words, the broad commercial bribery offenses, including not only the main commercial areas of economic activity between the battle for the market to reap economic benefits and bribery took place, but also including commercial sphere of national staff using their powers the implementation of the bribery offense . China's

    Criminal Law are set forth in the companies, enterprises and other units of taking bribes, to companies, enterprises and other units that the crime of bribery and accepting bribes, bribery, introduced the crime of bribery, the unit accepting bribes, unit crime of bribery, bribery of units , can encompass in it.

     (B) the establishment of a narrow concept of crime of commercial bribery, and the concept of separation of public bribery

     With the aforementioned commercial bribery, criminal law concepts on

    the negative contrast, Peking University, Professor Zhou Mi said: "Since that commercial bribery is bribery, then it is a criminal law concept. Because of bribery to achieve certain social harm is a crime, no doubt, a serious Commercial bribery is also a criminal act. It is quite different from the characteristics of bribery is that it is a generated from the economic field, a new social phenomenon, rather than a simple question of terminology. "[5] 8 The author is deeply agree, careful He emphasized that

    the concept of commercial bribery in criminal law, its essence is a narrow concept of crime of commercial bribery. A narrow commercial bribery crime is a crime of bribery in relation to public purposes, public bribery refers to the exercise of state power occurred in the process of bribery, rent-seeking part of the scope of public authority; narrow commercial bribery refers to the process of commercial activities in the community occurred in bribery, rent-seeking areas of social power. As a result, a

    narrow commercial bribery crimes may be defined as commercial activities in the behavior of the main system of non-state organs and their staff,

    bribery, including commercial bribery (to companies, enterprises, other units that the crime of bribery), and commercial bribery crimes

    (companies, enterprises and other units of accepting bribes), but does not include public bribery is a purely commercial bribery. Some academics have also be defined as "bribery of business people," so that commercial

    bribery as the "bribery of public officials," and those corresponding to the crime of bribery. [3] 3

     From a historical point of view, a narrow commercial bribery offense (hereinafter referred to as commercial bribery) is gradually separate from

    the crimes of bribery, its gone through a long process of evolution. Criminal Law enacted in 1979, the historical background, the main commercial are basically state cadres, commercial bribery is bribery by a public address. Therefore, there is no criminal law was on commercial

    bribery provisions. Later, with the economic reforms, the main commercial variety, caused by illegal and criminal activities related to legislative attention. September 2, 1993, the Standing Committee passed the "Anti-

    Unfair Competition Law" for the first time on commercial activities in the bribery illegal activities has been stipulated. Article 8 of the Act, paragraph 1, states: "operators are not allowed to engage in bribery or other means of property to sell or buy goods. In unlisted unit or