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


     (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

    individual secretly giving kickbacks to bribe punished; other units or individuals in the unlisted implicitly accepting kickbacks, and be punished for taking bribes. "adopted by the NPC Standing Committee in 1995, the" violation of company law on the punishment of crime decision

    "under article 9 of the company's directors, supervisors, employees taking bribes, and this is in criminal law the first time a commercial aspects of bribery. That same year, Supreme People's Court issued a "violation of

    company law on the handling of bribery, conversion, misappropriation of criminal cases the law applicable to the interpretation of a number of issues," also provides that companies and other enterprises directors, supervisors, employees the convenience of using his position to obtain or

    accepting bribes the amount of the larger, constitutes the crime of commercial bribery. As a result, "commercial bribery" was the title began to appear in China's legal system. SAIC November 15, 1996 "issued on the

    Prohibition of Commercial Bribery in the Interim Provisions," Article 2 states: "operator not violate the" anti-unfair competition law "under

    article 8, means to sell to commercial bribery or buy merchandise. "" The term commercial bribery refers to the operator for the sale or purchase of

    goods and the use of property or other means of bribery acts of the other units or individuals. "" property mentioned in the preceding paragraph refers to the cash and in kind, including the operators for the sale or purchase of goods, under the guise of promotion fees, publicity, sponsorship fees, research fees, labor, consulting fees, commission, etc. on behalf of, or reimbursement of various fees, etc., paid the other unit or their personal belongings. "" other means referred to in paragraph 2

    refers to the name of providing a variety of domestic and international travel, study, etc. other than the interest payment Cai Wu means. "Penal Code revised in 1997 to absorb the above-mentioned single criminal law and

    judicial interpretation of the provisions, in general, taking bribes the national staff constitute the crime of bribery, the provisions of the company, enterprise personnel accepting bribes; in general provides for the crime of bribery outside the company, the corporate officers of

    bribery. With the development of the situation, in June 2006, "Criminal Law Amendment (6)" these two criminal amended to read "companies, enterprises and other units of taking bribes," "for companies, enterprises

and other units bribery" .

     Commercial bribery a crime against nature law is different from the benefits of public bribery, commercial bribery to establish a narrow concept of crime has its historical inevitability. Professor Zhou Mi pointed out that commercial bribery, harmful to society is mainly

    manifested in two aspects: First, commercial bribery, serious impact on state tax revenues, China's economic development has become a major chronic illness; Secondly, commercial bribery, serious damage to the normal socio-economic relations and interpersonal relations, is not

    conducive to building a socialist harmonious society. [5] 9, the interests of the market economy is an economy, the pursuit of economic interests are considered to be unalterable. However, competitive and orderly market

    economy is the legal economy, commodity production, exchange, distribution, consumption and other economic behavior should be standardized and legalized, with the certainty and predictability. A variety of commercial activities should be in the market economy mechanism

    of fair competition conducted under the national laws and regulations should be followed as well as business practices. In a market economy, commercial subjects have their own economic purposes, to participate in the market to go. Among them, some commercial subjects instead of relying on a qualified product quality, good service, according to the principle of fair competition in good faith, but rather to rely on commercial bribery illegal means to achieve its economic goals, the pursuit of huge

    illegal profits. As Marx quoted the words of one economist described as: "There is 300 percent profit, it would dare to commit any crime, and even risk the danger of hanging." [6] 265 commercial bribery offenses against the laws of benefits is mainly reflected in it not only undermine the

    market economic order of fair competition, impede the effective functioning of market mechanisms to undermine the rational allocation of market resources, but also harm the interests of consumers, resulting in a

    huge waste of social wealth. In addition, commercial bribery, will be the breeding of a variety of economic crimes, contributed to the ugly phenomenon of rent-seeking of power and undermine the government's image. The establishment of commercial bribery, the concept of crime can clearly

    distinguish different qualitative sector bribery, differential treatment, warning clearly contribute to cultivating the public's belief in loyalty to the criminal law, but also conducive to China's criminal law and international conventions convergence.

     2, commercial bribery, to explore key issues

     (A) "to seek the interests of" reservations on the

     According to China's "Criminal Law" requirement, the establishment of commercial bribery must have "for any other individual interests"

    elements. Recently, some scholars believe that since the commercial bribery of "to seek benefits for others" being unable to overcome the shortcomings, is not conducive to punish rampant criminal acts of

    commercial bribery, but also with the "Convention" requirement are not in harmony, it should be in legislation the elements be abolished. In order to implement the "Convention," the relevant provisions of the spirit, to overcome the inadequacies of China's criminal law, it is necessary in

    legislation to seek abolition of the crime of commercial bribery in the interests of the element. [7] 1595 I disagree.

     First of all, to "make profits for others," understanding, can not become a pretext for the removal of the element. Indeed, how to understand

    "to seek benefits for others" in China's criminal law scholars were not fully consistent, there are about three main points: First, the subjective element that, say, as long as the behavior of people with the intention of seeking the interests of others, regardless of whether the conduct of the benefit implemented, whether the interest sought to not affect the establishment of this crime. [8] 629 2 is an objective element, said, that is, that the perpetrator used his position on accepting other people's

    property, only the implementation of the behavior for the people to seek benefits for others to reap the benefits before they can constitute a crime. [9] 679 obtained from the crime of bribery is not required for others interests. [10] 358 3 is the new objective element that, say,

    whether obtained from other people's property, or accepting other people's property, must be for other people's interests. But "to seek benefits for others" is just a promise, and must not require the perpetrator actually

    reaped benefits for others. [8] 601-603

     It should be clear on the premise that make profits for others the nature of the point of view, both of others should be legal, legitimate interests, but also includes others and should not be illegal,

    illegitimate interests. [11] 340 This is the first. Second, "to seek benefits for others," the objective is not appropriate, because its right to seek benefits for the understanding of behavior is too absolute, and some though not to seek benefits for others, but even accepting bribes of

    others, it has had to seek for others purpose in conformity with the offense constitutes a crime. Although China's criminal law sub-elements of

    the provisions on criminal subjective point of view, legislators are usually based on the "... ... for the purpose of", "fault", "knowledge" and other means of expressing, but it constitutes a crime can not be negated universal application of sex. In addition, the "Criminal" formulation of Article 163 and Article 385 of the existence of significant

    differences in expression, should not be based on the provisions of Article 385 of the Penal Code to understand the Penal Code Article 163. From the "Criminal Law" looks at the provisions of article 163, for other individual interests and a relatively large amount of these two conditions are obviously also applies to obtain a copy of other people's property and the illegal took other people's property. Of this crime are not required to obtain bribes to seek benefits for others point of view can not be

    established. Third, commercial bribery, the perpetrator intended purpose of receiving of property to seek benefits for others, otherwise, although accepting of others property, but also can not constitute this crime. Behavior of the receiving, the provision of property who has no interest in the request, simply send to the behavior of other people's property is

    not a bribe, but rather a gift. As long as the perpetrators can be identified with a commitment to carry out or have actually reaped benefits

    for others, should be part of is intended to make profits for others. Such an interpretation consistent with the provisions of the Criminal Law, but also for crimes different from the fraud, extortion and other crimes provided a legal basis, so it is correct. Finally, the "Convention"

    Article 18 provides for a "trading in influence" crimes, in order to acquire "an undue advantage" is one of the elements that constitute a crime. "The Convention" Article 16 provides that a "foreign public official or bribery of officials of public international organizations" crime, "the Convention" Article 21 provides for a "private-sector bribery"

    offense. The provisions of these two crimes are to reap the benefits of the elements, or you can reap the benefits derived for the elements. With

    regard to "seek interest" element of China's current criminal law and the "Convention," basically the same. Therefore, the commercial bribery crimes, "seeking interest" element of cancellation theory is untenable, "seeking interest" element must be retained.

     (B) the rebate, fee Reflections

     For a long time, China's law on "national staff" has been the concept of "identity theory" to define the concept that any "state cadres" status, whether in state organs, state-owned enterprises, the difference lies in

    the different jobs, there was no difference in the purpose of the, are to serve the people, so a unified political criteria to require all national staff. This concept is reflected in the penal legislation, that is, no

    matter what sort of work, national staff, as long as the process of taking bribes in the exercise of authority is a public crime of bribery, the most prominent in the economic exchanges between the various name of accepting kickbacks, fee - requirements on the.

     "Penal Code" Article 163, paragraph 2, companies, enterprises and other units of staff in economic transactions in violation of state regulations by accepting rebates under various names, fees, owned by individuals, and to companies, enterprises and other unit personnel

    punished for accepting bribes. "Penal Code" Article 385 provides that: "national staff to facilitate the use of his position to obtain other people's property, or to illegally receive other people's property to seek benefits for others, is accepting bribes. National staff in economic transactions in violation of state regulations accepting the name of a variety of rebates, fees, owned by individuals, and be punished for taking bribes. "As the rebates, fees are associated with the commercial acts, in

    a variety of economic exchanges in the name of accepting kickbacks, fees behavior in logic clearly belongs to the scope of commercial bribery, but the actors have the capacity of national staff in the legislation has been classified as a public bribery or broad scope of commercial bribery. As a result, the qualitative behavior of subjects depending on the identity of the perpetrator is a national staff of fixed for accepting bribes, non-

    national staff is scheduled for commercial bribery.

     However, the distinction between commercial bribery as a crime of bribery of public key lies in acts of bribery side differences in the objective area, depending on whether the use of public power, the use of public power for public bribery, did not make use of public power,

    compared with commercial bribery. Non-state companies and enterprises from

    the production and operation management to the business flow of charitable donations in all aspects of the behavior of nature belong to the private right behavior to the reasonableness of accepting bribes punished even more questionable. In economic exchanges did not mandate the use of the convenience of public administration, just as an equal party to use its trading relationship in the company, enterprises and other units in the

    business name of convenience, accepting a variety of rebate of the bribery charges, as it is not the right of public power on the money exchange, but an enterprise legal person the right to operate right on the money exchange, commercial bribery should be punished. Reposted elsewhere in the paper for free download http://

     (C) between doctor and patient, "red packets" problem

     Between doctor and patient "red packets" problem refers to the disease treatment process, patients and their relatives and friends to

    give doctors gifts, and doctors accepting gifts of money in patients with behavior. For the patients, doctors gave "red packets" are often out of their own health to consider, lest, when doctors can not fulfill their

    duties in the treatment, so patient's behavior is its own legitimate interests, not their subjective constitute a criminal bribery the crime required "to seek illegitimate interests", so his doctor gave "red packets" conduct did not constitute bribery or commercial bribery.

     A problem is that the doctors accepting patients with "red packets" behavior. A few point of view, the doctor may use the above-mentioned

    behavior of the Criminal Code to be convicted and punished. However, the majority of theory and practice circles point of view, such behavior is not appropriate for doctors to use criminal law, such as the Beijing Municipal Health Bureau is responsible for management of commercial bribery, the leading group pointed out: "red envelope" is unhealthy, but

    also to engage in serious treatment, but the and commercial bribery is different in nature. [12] namely, that patients with a doctor privately sent a "red envelope" does not belong to the criminal acts of bribery can only be regarded as a kind of unhealthy. I agree with the latter point of view.

     Must first be clear that the hospital can be divided into state-owned

    hospitals and private hospitals. State-owned hospitals in the medical

    staff can be divided into two categories: one is the hospital managers,

    such as the House leadership, relevant departments in charge of administrative staff, etc., and the other an ordinary clinicians, pharmacists, nurses and so on. Managers of state-owned hospitals in the

procurement of medicines and medical equipment variety, quantity, price to

    enjoy a certain degree of administrative authority, its actions are consistent with the composition of official acts can be described as engaged in official business, are consistent with the composition of national staff. However, general clinicians, pharmacists, nurses, clinics behavior is the use of their own physical or mental, technical knowledge to provide clinical services for patients of specialized professional conduct, their behavior is not consistent with the composition of official

    acts, not part of official acts, while the Department of a particular professional conduct, or practice of the. Therefore, the state-owned

    hospitals doctors received "red packets" behavior does not constitute the crime of bribery.

     Then, the state-owned hospitals, doctors received "red packets" behavior can constitute commercial bribery offense? Private hospitals, doctors received "red packets" behavior can constitute commercial bribery offense? In my opinion, the answer is no.

     For the doctors, the patients received red envelopes whether the act constitutes a crime of commercial bribery, which mainly come from the qualitative focus of doctors, whether the received red envelopes to use their position to benefit or a professional (on labor) is to facilitate

    the debate. "Using his position to facilitate the" Elements of the crime of bribery is not only one of the elements, but also constitute the elements of the crime of commercial bribery one of the elements ?. Tong

    said that "the use of his position to facilitate constitutes companies, enterprise personnel essential elements of the crime of bribery, saying that companies and enterprises use their own staff of managers, administered facilities or participating in a particular job conditions."

    [11] 340 crimes of bribery, commercial bribery trade power for money by its very nature, must reflect a certain degree of power, so is only to facilitate the work is not enough. Bribery is a criminal violation of the laws benefit the integrity of official conduct, commercial bribery law violations of the state benefit the company, enterprise management order and companies, businesses interests. [11] 340 in the crime of bribery, the bribe-taking people, has been able to solicit or accept other people's

    property because of his authority or a position to right the offeror's a need for a decisive impact; the bribe people the reason for bribery, is to bribe people to use their power to obtain a benefit. The two sides is based on what they need to bribe people with a job can benefit each

    other's facilities.

     Neither the "convenience of the use of his position" for an unlimited expansion of the explanation, it can not be interpreted too narrowly. Advantage of his position to facilitate the content includes the following

    aspects: (1) the use of their executives, in charge of, handling and other job functions, positions within the scope of authority; (2) the use by virtue of its power to command, influence subordinates and the use of other personnel job-related competence, in order to send people to seek benefits for bribery; (3) the use, by virtue of authority, position,

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