It refers to the behavior of close relatives of state functionaries or other people closely related to state functionaries, who seek illegitimate interests for the trustee by taking advantage of the position or authority of state functionaries or by taking advantage of the position or authority of other state functionaries, and ask for or accept the trustee's property, which is relatively large or has other serious circumstances.
Article 388 of the Criminal Law Any state functionary who, by taking advantage of his power or position, seeks illegitimate interests for the trustee through the behavior of other state functionaries and asks for or accepts the trustee's property shall be punished as accepting bribes.
If a close relative of a state functionary or other person closely related to the state functionary, by taking advantage of the position or authority of a state functionary, or by taking advantage of the position or authority of other state functionaries, seeks illegitimate interests for the trustee, asks for or accepts the property of the trustee, and the amount is relatively large or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined or confiscated.
State functionaries who leave their posts or their close relatives or other closely related persons take advantage of their original powers or positions to commit the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of the preceding paragraph.
key component
The constitutive elements of the crime of using influence to accept bribes are mainly determined according to the four constitutive elements of crime in China's criminal law, including subject, object, subjective and objective aspects.
First, the main aspects
The subjects of the crime of taking bribes by using influence are the close relatives of state functionaries or others closely related to state functionaries, and the resigned state functionaries or their close relatives and others closely related to them.
The first is the definition of close relatives. According to Article 82 of the Criminal Procedure Law, close relatives include: husband, wife, father, mother, son, daughter, brothers and sisters. As long as there is the above relationship with national staff (resigned national staff), they can be defined as their close relatives. Have the subject qualification of this crime. Secondly, there are other people who are closely related. The law itself does not define the connotation and extension of "closely related person", but "relationship" belongs to the category of value judgment and subjective identification. In this regard, Gao Liang's Opinions on Basic Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery issued in 2007 stipulates "special stakeholders", that is, those who have close relatives, mistresses or other interested parties with state functionaries. Some people think that this definition is too narrow and does not conform to the original intention of legislation. They believe that the following groups should be included: blood-based relationships, that is, relatives other than close relatives; Relationships based on study and work, such as classmates, teachers and students, alumni and colleagues; Relationships based on geography are like towns; Relationships based on feelings, such as friends, lovers, lovers; Relationships based on interests, such as customers, investors, contracts, creditor's rights and debts, etc. Other relevant personnel who know each other, trust each other and help each other under any circumstances. [1] thinks that the above definition is too broad, so we should define the connotation and extension of the crime of using influence to accept bribes: based on its specific relationship with the staff of a certain country, the subject can influence the job decision of the staff of that country or use the influence of the staff of that country to let the staff of other countries serve him, that is, to seek illegitimate interests for the trustee. The specific scope of application depends on the relevant legislation and judicial interpretation.
Second, the object.
The object of the crime of accepting bribes by using influence is the social relations violated by the crime. Although the subject of the crime of using influence to accept bribes is not a state functionary, it has a special relationship with the state functionary, which is essentially a disguised or indirect use of the position convenience of the state functionary, and the object of its infringement is similar to that of the crime of accepting bribes. The crime of accepting bribes is that state functionaries directly take advantage of their positions, and the object of its infringement is mainly the normal management activities of state organs, which refers to the normal vitality of state organs that realize the basic functions of the state, [2] and the integrity of state functionaries. [3] In the crime of using influence to accept bribes, there is a difference between people with close indirect relations who take advantage of the position of state staff. It is believed that the object of the crime of accepting bribes by using influence is mainly the normal management activities of state organs and the public's trust in the honesty and legality of state employees, or the honest image of state employees. Because people with close ties indirectly take advantage of the positions of state functionaries, they will also violate the procedures of state organs to handle affairs strictly according to law and affect their normal work activities. On the other hand, it will also make the public distrust public power.
Third, the subjective aspect.
The subjective aspect of the crime of taking bribes by using influence is direct intention, which shows that the actor realizes that he is a close relative of a national staff member and has a special relationship with the national staff member, which is enough to convince a third person that he can take advantage of the official behavior of the national staff member or the convenient conditions formed by the official position or position of the national staff member to seek illegitimate interests for the trustee through the official behavior of other national staff members. That is to say, they realize that in some way, they take advantage of the position of national staff to seek illegitimate interests for the trustee, hoping that the trustee will pay the property or take the initiative to ask for bribes from the trustee.
Fourth, the objective aspect.
The objective aspects of the crime of taking bribes by using influence are as follows: first, people with close ties seek illegitimate interests for the trustee, ask for the trustee's property, or illegally accept the trustee's property, with a large amount or other serious circumstances; Or people with close ties, taking advantage of the functions and powers of state functionaries or positions, seek illegitimate interests for the trustee through the behavior of other state functionaries, ask for the trustee's property, or illegally accept the trustee's property, with a large amount or other serious circumstances. Second, the retired national staff or their close relatives, taking advantage of the original authority or position convenience of the retired national staff, seek illegitimate interests for the trustee through the behavior of other national staff, ask for the trustee's property, or illegally accept the trustee's property, with a large amount or other serious circumstances.