Secondly, the crime of commercial bribery objectively manifests itself as the operator’s behavior of secretly paying the other party certain property or other benefits outside the accounts. Kickbacks are the main form of bribery, but the law does not clarify what “other interests” include, and this needs to be explained through judicial interpretation. In practice, other interests mainly refer to property interests.
The amount and circumstances of the crime are also important issues in defining the crime of commercial bribery. In fact, the amount and the circumstances are two very important criteria for distinguishing general commercial bribery from commercial bribery crimes. Regarding the crime of bribery by employees of companies, enterprises or other units, it is a crime nationwide for an individual to accept a bribe of 5,000 yuan; in Shanghai, it is a crime for an individual to accept a bribe of 15,000 yuan; for the crime of bribing employees of a company, enterprise or other unit, the crime is The state stipulates that it is a crime for an individual to accept a bribe of RMB 6,543,800,000, and for an employer to accept a bribe of RMB 200,000, a crime; in Shanghai, it is a crime for an individual to accept a bribe of RMB 30,000 or more, and for an employer to accept a bribe of RMB 6,543,800,500,000 or more.
Third, the subject of commercial bribery crime. Commercial bribery includes bribe-giving and bribe-taking. It is an inseparable two-way behavior, and its criminal subjects also include bribe-giving subjects and bribe-receiving subjects.
The subject of commercial bribery crime. After the revision of the Criminal Law, the subjects of commercial bribery crimes are companies, enterprises, other units and their staff. That is, as long as they are legal entities and people working in legal entities, they can constitute the subjects of this crime. The difference from the subject of commercial bribery is that the subject of commercial bribery includes both the operator and the staff of the unit where the operator works; the subject of commercial bribery can only be the operator.
The subject of commercial bribery crime. The subjects of commercial bribery crimes are the staff of units involved in commodity transactions. It is worth noting that the subjects of commercial bribery crimes do not include units. The filing standards and criminal constitution of the crime of commercial bribery. Article 163: If a staff member of a company, enterprise or other unit takes advantage of his or her position to solicit or illegally accept property from others to seek benefits for others, and the amount is relatively large, he or she shall be punished. The offender shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge, the offender shall be sentenced to fixed-term imprisonment of not less than five years and may also be subject to confiscation of property.
If a staff member of a company, enterprise or other unit takes advantage of his or her position in economic transactions, violates state regulations, and accepts kickbacks and handling fees in various names, which are owned by individuals, the provisions of the preceding paragraph shall apply. punishment.
If a person engaged in official duties in a state-owned company, enterprise or other state-owned unit or a person assigned by a state-owned company, enterprise or other state-owned unit to a non-state-owned company, enterprise or other unit to engage in official duties commits the acts mentioned in the preceding two paragraphs, Convicted and punished in accordance with the provisions of Articles 385 and 386 of this Law.
Article 164 of the "Criminal Law" Whoever, in order to seek illegitimate benefits, gives property to the staff of a company, enterprise or other unit, and the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined. Commercial bribery crime is a kind of crime, including commercial bribery crime and commercial bribery crime. Components: 1. The subject of commercial bribery crime. Commercial bribery includes bribe-giving and bribe-taking. It is a crime established by the collusion between bribe-giving and bribe-taking. It is an inseparable two-way behavior, and its criminal subjects include bribery subjects and bribery subjects accordingly. 1. The subject of the crime of commercial bribery is a general subject. As long as it is "giving property to the staff of a company, enterprise or other unit for improper benefits", the crime of commercial bribery can be constituted. In commercial bribery, if a bribe is paid in the name of an operator's legal entity and the legal entity's will is carried out, the legal entity shall bear responsibility and become the subject of commercial bribery. If an agent of an operator sells more goods for himself or pulls back the source of goods, and pays bribes through various means in his own name, the agent is the subject of the crime of accepting bribes. 2. The subjects of commercial bribery crimes are employees of companies, enterprises or other units. The newly adopted Criminal Law Amendment (6) extends it to staff of other units other than companies and enterprises, indicating that in practice, if the subject is only the staff of companies and enterprises, it is not enough to cover the actual commercial activities in social life. The scope of bribery.
For example, staff of public institutions in the fields of medical care, education, engineering construction, property rights transactions, etc. Accepting kickbacks is essentially a form of commercial bribery. The original criminal law was unclear and could not cause harm to its staff. Therefore, only state staff, enterprise staff and staff of other units * * * can become a complete extension of the natural person subject constituting the crime of bribery. Therefore, the subject scope of commercial bribery crimes will be broadened to a certain extent in legislation, making its coverage more comprehensive and complete, reflecting the progress of my country's criminal law in punishing commercial bribery crimes. 2. The object of commercial bribery crime Commercial bribery infringes upon a complex object. It infringes not only the normal operating order of the commodity economy, but also the integrity and integrity of the staff of companies, enterprises or other units in the market economy. . Market competition is an economy dominated by fair competition. The purpose of obtaining benefits through commercial bribery will inevitably undermine the fair and just market order by undermining the transaction order of fair competition. As members of the enterprise, staff of a company, enterprise or other unit, while exercising their powers in accordance with the contract, have the obligation to be honest, strictly abide by laws and disciplines, work hard for their unit, and have the right to receive reasonable and legal labor remuneration. Powers should not be abused and should not be used as a bargaining chip for some people to seek personal gain or corrupt the law. Obviously, bribery has violated the integrity of people working in companies, enterprises or other units. three. Objective aspects of commercial bribery crime 1. The objective aspect of the crime of commercial bribery is to give property to staff of a company, enterprise or other unit, but does not include kickbacks and handling fees. 2. The objective aspects of the crime of commercial bribery. It is manifested in the perpetrator taking advantage of the convenience of his position to solicit or illegally accept property from others. In economic transactions, he takes advantage of the convenience of his position to accept kickbacks and handling fees in various names in violation of national regulations, which are owned by the individual. The following points must be made clear here: The so-called "taking advantage of the convenience of position" refers to the actor taking advantage of the convenience of supervising, handling or participating in the business of a company, enterprise or other unit. The actor takes advantage of the convenience of the position, (1) companies, enterprises Or whether indirect bribery by staff of other units constitutes a crime. Directors and supervisors of a company use their powers and status to form a restrictive relationship that affects the interests of the exploited, and seek benefits for the client, solicit or accept bribes through the convenience of other personnel within the company or outside the company, which is considered indirect bribery. The judicial interpretation of this situation has not been clearly stipulated so far, so according to the principle of legal punishment in the criminal law, it cannot be regarded as this crime by analogy. (2) Whether taking advantage of one's position is a necessary condition for employees of a company, enterprise or other unit to accept bribes. This has always been controversial in Chinese criminal law circles. I think: as far as the briber is concerned, the reason why he can ask for or accept other people's property is because his authority or status can have a decisive impact on certain needs of the briber; as far as the briber is concerned, the reason why he has to give property to the perpetrator , because he needs to obtain some benefits through the exercise of power in the hands of the actor. It can be seen that the basis for giving and accepting bribes is that the perpetrator has certain conveniences in his position, that is, it is essentially a transaction of power and money. 4. The subjective aspect of commercial bribery crime The subjective aspect of commercial bribery crime should be direct intention, that is, the perpetrator actively pursues the occurrence of criminal results. At the same time, the perpetrator of this crime should have the purpose of soliciting or accepting bribes to seek benefits for others. "Seeking benefits for others" is a reward for others. Whether the benefits sought are realized or justified does not affect the establishment of this crime, which includes both benefits that others deserve and improper benefits that others do not deserve; This includes benefits that have been obtained for others, as well as benefits that are intended to be obtained or are being obtained but have not yet been obtained. However, if the perpetrator has no intention, commitment and fact to seek benefits for others, this crime will not be committed. "Seeking benefits for others" is a constitutive element of the crime of commercial bribery stipulated in legislation. Since commercial bribery mainly infringes on the fair market transaction order, whether bribery infringes upon this legal interest depends on whether there is a consideration relationship between the act of accepting property and the official behavior that has been implemented, is being implemented, will be implemented in the future, or is promised to be implemented. . Therefore, after "illegal acceptance of property from others", the criminal law adds the element of "seeking benefits for others" to explain this behavior.