With the continuous development of market economy, a crime of trading power and money has appeared in commercial activities, which is different from the general bribery crime.
The crime of commercial bribery. After the promulgation and implementation of the newly formulated Anti-Unfair Competition Law and the Decision on Punishing Crimes against the Company Law,
In view of the relevant provisions of the above two laws, criminal law scholars clearly put forward the new crime of commercial bribery. However, when determining the crime of commercial bribery
There are still many problems worth discussing in knowledge, and this paper tries to express my humble opinion on this issue.
First, the concept of commercial bribery crime
Due to the political and economic system, there is no provision of commercial bribery in the original criminal code of our country, and there is no commercial bribery in criminal law theory.
A concept. 1September 1993 and1February 1995, the National People's Congress Standing Committee (NPCSC) passed the Law on Combating Unfair Competition and the Law on Punishing Illegal Acts.
After the crime of commercial bribery was determined in the Company Law, a new crime of commercial bribery was put forward by the criminal law circle. However, in the theoretical research of commercial bribery crime, there is a lack of it
The lack of a clear definition of the concept of commercial bribery leads to different generalizations and explanations of commercial bribery in theoretical circles. As far as I know, about
The concept of commercial bribery has two different expressions and definitions. One is to regard the situation stipulated in Article 8 of China's Anti-Unfair Competition Law as "I"
China's legislation on the crime of commercial bribery holds that the crime of commercial bribery refers to the act of giving or receiving kickbacks in commercial purchase and sale activities and should be punished according to law.
Wei (Note: Zhang and Yang Qinfa's Preliminary Study on Commercial Bribery Crime, Chinese and Foreign Law No.2, 1995). This view defines the crime of commercial bribery as business.
Giving and receiving kickbacks in the purchase and sale activities. Second, it is stipulated in Article 9 of the National People's Congress Standing Committee (NPCSC)'s Decision on Punishing Crimes in Violation of Company Law.
As the stipulation of commercial bribery in China's criminal law, this situation holds that commercial bribery refers to the convenience of directors, supervisors or employees in China.
Promoting, soliciting or accepting bribes, the amount of which is relatively large (note: Wu Jianyan wrote "The Legal Application of the Provisions on Punishing Crimes in Violation of the Company Law". )
Law "1995, fifth issue). This view defines the crime of commercial bribery as the company's relevant staff taking advantage of their positions to ask for or accept bribes. the above-mentioned
There are great differences between the two viewpoints in the legislative basis and the expression and definition of the concept of commercial bribery. It can be seen that commercial bribery
Crime is still a vague concept in criminal law theory. The author believes that in order to correctly understand the concept of commercial bribery crime, it is necessary to clarify two issues first.
Premises: First, commercial bribery crime should be a crime, not a specific crime. In the above two opinions, the crime of commercial bribery is regarded as one.
The use of specific fees. We know that, logically speaking, commercial bribery and bribery are similar concepts, and bribery is
A concept of quasi-crime, which includes three specific crimes: bribery, bribery and bribery introduction. Similarly, the crime of commercial bribery should also include commerce.
Crime of accepting bribes and commercial bribery. And commercial bribery and commercial bribery are obviously two completely different criminal acts, using commerce
The crime of accepting bribes summarizes commercial bribery and commercial bribery as specific crimes, and it is impossible to distinguish two different criminal acts. sequence
Second, in China's criminal law, the unique connotation of commercial bribery crime should be consistent. Theoretically speaking, in a criminal law system, the same
The charges should be the same, and different behaviors can never be defined by the same charge. Therefore, commercial bribery crime should be a unified concept.
There can't be two different commercial bribery crimes.
The author believes that the so-called crime of commercial bribery refers to the fact that one party engages in business activities for commercial interests or other interests in the business management activities of commercial enterprises.
Business operators and managers give money, while other business operators and managers use their business and management power to seek benefits for bribers.
Accepting money or goods for profit, if the circumstances are serious. The former is the crime of commercial bribery, and the latter is the crime of commercial bribery, both of which are collectively called the crime of commercial bribery. we know
Tao believes that bribery is essentially a transaction of power and money, whether it is a general bribery crime or a commercial bribery crime, it is manifested as some kind of power and money transaction.
Exchange. But these two kinds of crimes are different in nature and have their own characteristics. The difference is: (1) From the perspective of the infringed object.
The object of bribery crime is the normal management activities of state organs and the integrity of state organs and their staff, which is called the normal management of state organs.
Activities refer to the activities of directing, managing and supervising the administrative affairs of the state. Whether it is the crime of accepting bribes, bribery or introducing bribery, it is aimed at the state machine.
The normal management activities of Guan cause harm. The crime of commercial bribery, whether commercial bribery or commercial bribery, has nothing to do with the normal management of state organs.
Involved, its behavior will not infringe on the normal management activities of state organs. Because commercial bribery is the exchange of money and commercial power, it causes business
Unfair competition in enterprise operation and management, therefore, it can be said that the crime of commercial bribery is mainly fair and just to enterprise operation or management.
There are essential differences between sexual assault and bribery; (2) From the perspective of the subject of crime, in the crime of accepting bribes, the party who accepts bribes must be the staff of state organs.
Personnel. Strictly speaking, the staff of state organs mentioned here should exercise decision-making, command and management rights,
Supervisor, that is, a person who has certain management authority over some aspects of state administrative affairs. In the crime of commercial bribery, the briber is not a state functionary.
Employees, but managers or internal managers of commercial enterprises, such as directors, supervisors, managers, buyers and sellers, etc. These people only have
Have the power to operate or manage certain aspects of enterprises, but have no power to manage state administrative affairs; (3) from the process of bribery, bribery
Bribery crime occurs in the process of state administrative affairs management, and the briber always uses the state administrative affairs management authority entrusted by the state to do business in the country.
In the management of political affairs, accepting money seeks benefits for bribers, while the crime of commercial bribery occurs in the process of enterprise operation or enterprise management activities, in which bribes are accepted.
One party uses the power of commercial operation or internal management of the enterprise to seek benefits or benefits for bribers and accept property; (4) taking advantage of his position to accept bribes.
As far as the nature of power is concerned, the power used by bribers in bribery crimes is the power given by the state to some organs and individuals to engage in the management of state administrative affairs.
Power is a kind of public power, and the power used by bribers in commercial bribery crimes is given by individual enterprise organizations for commercial operation.
Or some kind of authority for internal management of enterprise organization, which is just a private power in the form of group, and its power comes from enterprise organization and is related to the state.
In administrative affairs management, there is an essential difference between public power and private power. It can be said that in the transaction of money and power, whether to use the power of the public or the power of enterprises is the forbidden area.
Do not pay attention to the fundamental point of bribery crime and commercial bribery crime. But for a long time, due to the political and economic system of our country, it has been in the national bank.
In political management, there is no distinction between government and enterprise, the boundary between government administrative behavior and enterprise commercial behavior is unclear, and public rights and private rights are confused. So many companies are often listed.
Behavior and commercial behavior are regarded as administrative actions of the state. Therefore, in China's criminal laws and regulations, many criminal acts that should belong to commercial bribery are classified.
Included in the crime of accepting bribes. With the reform of China's political system and economic system, especially after the implementation of the market economy system, the government has gradually implemented it.
Behavior is separated from enterprise behavior, so as to finally separate government from enterprise. This is reflected in the criminal law, and commercial bribery, which is different from bribery crime, appears.
Sin.
Second, China's criminal legislation on commercial bribery.
Since the promulgation of the Criminal Law of People's Republic of China (PRC) in July 1979, China's criminal law has been revised and supplemented many times.
Fixed, but also developing and changing. 1February, 995, the National People's Congress Standing Committee (NPCSC) adopted the Decision on Punishing Crimes against Company Law, which clearly stated that
The criminal punishment for bribery of company employees is stipulated, that is, the crime of commercial bribery is stipulated. Although there was no name of commercial bribery in criminal law before this.
However, there is a crime of commercial bribery, which is only classified as bribery.
In the crime of accepting bribes stipulated in article 185 of China's criminal law, bribery of enterprise employees is included, because China's criminal law
Captains generally include the relevant personnel of state-owned enterprises in the scope of state staff. In fact, not all people who are engaged in official business in state-owned enterprises are.
To manage the state administrative affairs, many so-called official duties are to manage the internal affairs of enterprises. These people use their abilities to accept
Bribery is essentially different from bribery of staff engaged in the management of administrative affairs in real countries. From the current point of view,
The acceptance of bribes by personnel engaged in internal management and operation of enterprises should constitute the crime of commercial bribery. Therefore, it can be said that there are
The provisions on punishing commercial bribery are only not in the name of commercial bribery crime.
1988 In February, the National People's Congress Standing Committee (NPCSC) passed the Supplementary Provisions on Punishing Corruption and Bribery Crimes, which made the staff of collective economic organizations
As the main body of the crime of accepting bribes, officials also stipulate that accepting kickbacks in violation of state regulations in economic exchanges belongs to individuals and is also punished as the crime of accepting bribes. This is obviously it
The prescribed criminal act is actually a kind of commercial bribery. Because the staff of collective economic organizations have neither the names of national staff nor the names of national staff.
There is an essential difference between the national staff who exercise their power after they have obtained the power to engage in state administrative affairs. In addition, it was received back in economic exchanges.
There are essential differences between embezzling and accepting bribes in the process of state administrative activities, especially for the staff of collective economic organizations in economic exchanges.
The act of accepting kickbacks is far from the so-called bribery of people engaged in public affairs. It can be seen that although the above behavior is stipulated in the crime of accepting bribes, it is actually
This is a commercial bribe.
1Article 8 of the Anti-Unfair Competition Law passed by the National People's Congress Standing Committee (NPCSC) in September, 1993 stipulates that the operator secretly gives it to the other unit outside the account.
Or individuals who accept kickbacks shall be punished as bribery; Other units or individuals who secretly accept kickbacks shall be punished as accepting bribes. The behavior of this provision, although it is
Convicted and punished according to the crime of accepting bribes or bribery, but, in fact, this kind of behavior is completely different from taking bribes by using state administrative power.
It is also different from the crime of accepting bribes in the Supplementary Provisions on Punishing Corruption and Bribery. For example, whether the unit recovering the deduction is a foreign-funded enterprise or a private enterprise.
How can enterprises establish the crime of accepting bribes? It can be seen that the crime stipulated in this article is actually a crime of commercial bribery, and because of this, some scholars have codified this law.
Article is completely regarded as the stipulation of commercial bribery crime in China's criminal law. But it needs to be clear that this article does not explicitly propose the crime of commercial bribery.
The acts specified in this law shall still be convicted and punished according to the crime of accepting bribes and bribery. That kind of legislation thinks this article is a clear definition of the crime of commercial bribery.
There is no basis.
Clearly stipulates that the crime of commercial bribery, different from the crime of accepting bribes, should be 1995 February the National People's Congress Standing Committee (NPCSC) promulgated the "on the punishment of infringement of the company.
The crime of accepting bribes by company employees, that is, commercial bribery, stipulated in Article 9 of the Criminal Law Decision on Crime clearly stipulates the constitutive requirements and criminal responsibility of this crime.
Mr. Ren pointed out that it is the legal basis for us to identify and punish some commercial bribery crimes in China's criminal law system.
Third, improve the legislative thinking of commercial bribery crime
As mentioned above, China's criminal law has provisions on commercial bribery, but these provisions still have two shortcomings: First, there is no business.
Industrial bribery crime is different from bribery crime, but some cases that should belong to commercial bribery crime are stipulated in bribery crime as bribery crime conviction
Punishment. For example, the crime of accepting bribes stipulated in article 185 of China's criminal law, and the bribery of relevant personnel of enterprises in China; The National People's Congress Standing Committee (NPCSC)'s "tube"
Staff members of collective economic organizations, as stipulated in the Supplementary Provisions on Punishing Corruption and Bribery, pay bribes, give or receive property in economic exchanges.
Several situations of accepting kickbacks; Bribery and bribery are punished as stipulated in Article 8 of the Anti-Unfair Competition Law. The above behavior should be of a commercial nature.
Bribery, but the law still stipulates that bribery and bribery are convicted and punished, which is obviously inappropriate. Because commercial bribery and bribery are essential.
According to the theory of social harmfulness of behavior, commercial bribery is less harmful to society than bribery crime, and it will be two kinds of crimes with obviously different social harmfulness.
Defining behavior as a crime conviction and punishment obviously violates the principle of suiting crime and punishment in China's criminal law. Second, the provisions of the crime of commercial bribery are not complete enough.
noodle Although the crime of commercial bribery is clearly stipulated in Article 9 of the National People's Congress Standing Committee (NPCSC)'s Decision on Punishing Crimes against National Laws, it should be
The law mainly stipulates the crime of accepting bribes by company employees, but at the present stage in China, the main bodies of business activities are not only limited liability companies and joint stock limited companies,
There are other business organizations. Although Article 14 of this decision stipulates that employees of other enterprises who commit the crime of Article 9 of this decision shall be punished in accordance with the provisions of Article 9, however,
From the legislative point of view, this is a comparative provision, lacking a comprehensive and complete provision on commercial bribery crime. Besides, in the current criminal law, there is no business.
The crime of bribery is clearly defined. In view of this, China's legislative provisions on commercial bribery crimes can be considered from the following points:
1, China's criminal law has clearly increased the provisions of the crime of commercial bribery. We know that if there is a bribe, there will be a bribe. Similarly, there will be commercial bribery.
Behavior, there will inevitably be commercial bribery. And commercial bribery will also damage the fairness and justice of commercial activities, thus endangering society.
Yes, if the circumstances are serious, it should be punished as a crime.
2. Unified commercial bribery crime and commercial bribery crime should be stipulated in legislation, and their scope should be clearly defined. Commercial bribery should be included in the legal provisions.
Crime and commercial bribery are different from bribery and bribery. In my opinion, the crime of commercial bribery and commercial bribery can be defined mainly from the following points.
The scope of the crime. As far as the crime of commercial bribery is concerned, the subject is limited to the personnel engaged in commercial operation or internal management in various commercial enterprise organizations, that is, they have
A person who has the right to run or manage an enterprise. It can be seen that the subject of commercial bribery crime must have certain power and be fully engaged in commercial enterprises.
Laborers cannot be the subject of this crime. At the same time, the authority is limited to the authority of enterprise operation or internal management. If it is the national administrative department
Those who use their powers to accept bribes in the management of affairs cannot constitute the crime of commercial bribery, but should be punished as the crime of accepting bribes; The objective aspect is limited to business.
In the process of enterprise operation or internal management, the actor uses his management authority to ask for or accept bribes. As far as commercial bribery is concerned, the actors mainly
I want to obtain commercial benefits or other benefits from the commercial enterprise organization of the briber through the management authority of the briber. Therefore, this crime
Like commercial bribery crime, it occurs in the process of commercial operation, business dealings and internal management of enterprises. Based on the above analysis, we can analyze the commercial bribery crime.
The crime of commercial bribery is expressed as follows: the so-called crime of commercial bribery refers to the fact that the management personnel of commercial enterprises use
The act of taking advantage of one's position to ask for or accept large amounts of money. The so-called crime of commercial bribery refers to enterprises, organizations or individuals engaged in commercial operations in order to seek
The act of giving a large amount of money to the manager or internal manager of a commercial enterprise by obtaining illegitimate commercial interests or other interests.
3. Separate statutory punishment shall be stipulated. Since the crime of commercial bribery and the crime of commercial bribery are independent crimes, legal punishment should be stipulated separately.
Considering that the crime of commercial bribery and commercial bribery are less harmful to society than the crime of accepting bribes and bribery, lighter legal punishment should be stipulated accordingly.