The current criminal law of our country bribery legislation defects about the punishment to the crime of Embezzlement

China's criminal law article383Article386The provisions on the crime of embezzlement, bribery, according to the seriousness of the case, were punished in accordance with the following provisions: (a) the personal corruption (bribery) in the amount of one hundred thousand yuan of above, department for more than ten years of fixed-term imprisonment or life imprisonment, and may concurrently be sentenced to confiscation of property; if the circumstances are especially serious, the death penalty, shall be confiscated property. (two) the personal corruption (bribery) in the amount of fifty thousand yuan less than one hundred thousand yuan, more than five years in prison, and may concurrently be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to life imprisonment, confiscation of property. (three) the personal corruption (bribery) in the amount of five thousand yuan less than fifty thousand yuan, a year more than seven years in prison; if the circumstances are serious, department for more than seven years in prison. An individual who embezzles less than ten thousand yuan in five thousand yuan of above, after committing the crime of repentance, positive gains, may be given a mitigated punishment or be exempted from criminal punishment, administrative sanctions shall be given by their unit or the higher authorities. (four) the personal corruption (bribery) of dissatisfaction with the amount of five thousand yuan, if the circumstances are serious, shall be sentenced to two years or criminal detention; if the circumstances are relatively minor, he shall be given administrative sanctions their unit or the higher authorities, as appropriate. The corruption (bribery) untreated, according to the cumulative amount of punishment of corruption (bribery). The author thinks, above about the embezzlement crime legal punishment of bribery crime is flawed as follows

ABribery crime is crime of corruption, the legislative defects

1 Lack of qualification penalty provisions

Looking at all times and in all countries of the crime of corruption and bribery, corruption is the essential characteristics, the criminals are using their powers for personal gain, so the criminal law shall be deprived of the qualification of bribery and corruption crimes, to prevent them from using its powers to the bribery crime again.^[25]Today, most countries in the world on the crime of corruption and bribery punishment, are more focused on the application of qualifications punishment, stipulates the crime of corruption and bribery criminal who may act as some work, such as the national civil servants, and it is the effective measures. In China's current criminal law, the crime of corruption bribery crime is state personnel duty crime, status and duties of subject is the necessary condition, but in crime, corruption and bribery in our country penalty does not stipulate the qualifications punishment, is obviously inconsistent with the special qualification of subject of the crime requires, lead vacancy the crime of corruption bribery crime legal punishment of penalty of qualifications. In practice, some due to bribery crime prosecuted people, if sentenced to probation or exempted from criminal punishment, can still serve as state personnel, still have to bribe crime may. It can be said that the current legislation on major mistakes.^[26]

In Henan, former vice president of Zhengzhou Institute of Aeronautical Technology bribery case, Liu Yanhong served as vice president of Zhengzhou Institute of Aeronautical Engineering(Deputy hall level)And the east campus construction command deputy commander, in project contracting, the allocation of engineering, the supply of building materials in the process, has received the building contractors, building materials suppliers, 13 people 24 times bribery, a total of 465000 yuan. Anyang County of Henan Province, the people's court to the crime of accepting bribes sentenced a trial at Liu Yanhong the former vice president of Zhengzhou Institute of Aeronautics Industry Management6Years. This judgment without additional qualifications punishment, not depriving the criminal Liu vice president after the completion of execution to continue as vice president post, or move to a different location to continue as a post qualification, for later for the crime of corruption and bribery may be provided.

2 The criminal provisions of the waste of life

The death penalty is a punishment system in the most severely, so the lawmakers expect it to play "general prevention function execute one as a warning to others", but that is not the case in judicial practice. The crime of corruption and bribery molecule is national staff has the authority, the crime is relatively hidden, so its escape after committing the crime the penalty in fluky psychology than common criminal crime is more obvious, psychological mechanism of general deterrence effect of penalty from the point of view, to estimate its powerful luck may far exceed the crime may suffer the punishment of bitter. This when criminals luck plays a dominant role, deterrent effect of capital punishment is often difficult to play the role of.^[27]Which leads to corruption and bribery cases in China is banned repeatedly repeat offenders, corruption and bribery crime prone to some economic, political power sector, an increasing amount of money involved, corrupt officials level more and more high, group crime, scandal, the increase in the number of strings, judicial corruption is becoming increasingly serious.In recent years there have been primary NPC vice chairman Cheng Kejie, former vice governor of Anhui province Wang Huaizhong, former vice governor of Jiangxi province Hu Changqing three provincial and ministerial level officials were sentenced to death, the punishment is not severe, but the size of corrupt officials before the rot successor, take death calmly, "Qiu Xiaohua" "Zheng Xiao Yu" streams emerge in an endless stream, on the one hand the corrupt officialsEstimation of luck may be powerful far more than the crime may suffer a penalty from reduced life penalty, deterrent effect.

3 Deficiency of property penalty provisions

The crime of corruption and bribery is a kind of corrupt crime criminals used his position to seek the interests of property, so as a penalty to deprive the criminal acts of the interests of property, the property punishment can be applied to the crime of corruption and accepting bribes. The criminal law of our country stipulates the property punishment with fines and confiscation of property two, the fine penalty is lighter than the penalty of confiscation of property. But the legal punishment of bribery and corruption crimes set only the penalty of confiscation of property, without penalty, and the penalty of confiscation of property is not science, only for the crime the heavier stipulates the penalty of confiscation of property, the general provisions of crime is not the property punishment, which is obviously the flaw in legislation. In accordance with the provisions of the criminal law as main standard, convicted of corruption and bribery is the amount, corruption and bribery in the amount of fifty thousand yuan, an additional penalty of confiscation of property can be sentenced to a punishment, regulations and the corruption and bribery fifty thousand yuan of the following is not the property punishment. Corruption and bribery fifty thousand yuan or less, in fact only the amount of difference in essence, avarice is the same, only for corruption and bribery fifty thousand yuan for the property punishment and fifty thousand yuan of the following is not applicable, legal punishment makes setting property penalty unbalance. The plot of the crime of corruption and bribery in general only freedom penalty, fair, is not conducive to corruption and bribery crime blow. Under the market economy system has established perfect today, the values of society has undergone profound changes, people pay more attention to interest, even appeared the tendency of materialism, money worship. In this case, the property punishment has economic sanctions other penalty methods can not be replaced, with the free punishment cannot have the advantages and strengths, the general prevention and special prevention effect is more obvious. So, for the crime of bribery molecular general, in principal punishments sentenced to restriction of freedom at the same time, not to impose property punishment, is obviously unreasonable. To a certain extent the bribery criminal indulgence.^[28] In Henan, former vice president of Zhengzhou Institute of Aeronautical Technology bribery case, Liu Yanhong has received the building contractors, building materials suppliers, 13 people 24 times bribery, totaling 465000 yuan and was sentenced to six years in prison, without the penalty of confiscation of property, no additional penalty, so how can we touch the sore spot, inhibit the greedy for profit motives, no crime?

TwoDetermine the legislative defects of embezzlement, bribery penalty standard

China's criminal law provisions for corruption and bribery crime amount standard is not scientific. The establishment of China's corruption and bribery, and in a certain amount as conviction criterion. According to the "PRC Criminal Law" article383The provisions of article, corruption and bribery conviction criterion for5000Element. This kind of legislation technology is a product of the legal principle of crime and punishment is excessive, to the law strictly and accurately, preventing judicial arbitrary^[29]. However, the legislation gives the impression that the French omissions, not close enough, it is difficult to reflect the basic attitude towards China and severely punish corruption. Because the amount of provisions, can say in the legislation to the corrupt prescribed a not small behavior space, the judicial practice of rigid grasp more easily make people produce a kind of illusion, that a certain amount of corruption, bribery is allowed by the laws of china. So, China's criminal law for the negative evaluation of corruption and bribery because the provisions of that amount reduced, corruption in this legal arrangement will have a relatively clear psychological expectations. Use this law to anti-corruption, the effect is one can imagine. This inevitably reduces strike range, more is to be beyond one's grasp cannot be used to measure the quantity of the crime of corruption and bribery. The provisions of the criminal law on the crime of corruption and bribery in the amount of the standard is not scientific.

ThreeBribery crime legislation defects of setting up the crime of corruption

In general, corruption and bribery penalty punishment range is too large, difficult to grasp. From the outside, the punishment starting point is too high, do not coordinate with other types of crime. Seen from within, the sub punishment without a good convergence, the grades are not coordinated.

1 The exterior penalty rate does not coordinate

Don't coordinate with external penalty rate problems, mainly refers to the penal degree starting point is too high, do not coordinate with other types of crime. Violation of the principle of equality before the criminal law, the general principles of conflict with punishment and penalty of crime punishment to be heavier than the duty crime principle. Before the promulgation of the new criminal law, according to the 1988 Years "the Standing Committee of the National People's Congress concerning the punishment of crimes of embezzlement and bribery of the Supplementary Provisions", corruption and bribery acts constitute the crime of amount of punishment is two thousand yuan. Less than two thousand yuan, only if the circumstances are relatively serious, will constitute a crime. While the amount of theft criminal point, according to the relevant judicial interpretation is only five hundred yuan, so that the uncoordinated phenomenon: the legal punishment of crime of corruption, bribery and the upper limit of theft, although the same as the death penalty, but the nature and extent of harm is more serious corruption and bribery of the criminal the actual point higher than the theft of the starting point of punishment.

The new criminal code will be more corruption and bribery amount of punishment to greatly improve to five thousand yuan, while the amount of theft crime constitute the starting point is still the generality of "large amount", according to the Supreme People's court's judicial interpretation, the so-called "large amount", generally refers to steal property amount in five hundred to more than two thousand yuan. In a certain sense, the new criminal code seems to have aggravated the contradiction of bribery and theft of the statutory punishment uncoordinated, not only against the revised penal code section4 The confirmation of the equality principle, also with the state must severely punish corruption and bribery corruption policy is not coordinated.

Corruption and bribery is a crime, due to the crime by taking advantage of his office, which is deceptive and dangerous greater. Corruption and bribery from the consequences of not just treasury income decreases, the social welfare weaken and the loss of people's property, but the whole society is damaged, bureaucratism, affecting the party's prestige and economic development, shake the foundation of social stability. Therefore, authoritative personage points out: corruption and bribery crime than bureaucratic go even farther than.^[30]This shows that the harm is obviously higher than the general property crime.

But according to the provisions of the criminal law, the abnormal situation of national staff use post convenient theft punishment is much lighter than the ordinary theft, which made the "crime and punishment of light". Obviously, the crime of corruption and bribery crime criminal point setting reasonable doubt, crime light longitudinal national staff too.

2 The punishment and internal disharmony

Internal punishment does not coordinate, is refers to the son the punishment without a good convergence, the grades are not coordinated. Corruption and bribery punishment subsidiary punishment (penalty grade) partition, is basically a bribery based on the amount of. Between the corruption and bribery of various grades of statutory penalty weight connection without gradient, coincidence phenomenon is serious.

One is the dissatisfaction with the amount of bribery and corruption 5 Thousand yuan, regardless of the seriousness of the circumstances, shall be punished for the crime, but the circumstances are relatively minor, may be exempted from punishment, given that administrative penalties for non penalty. In serious cases, will be fined 6Months to 2 Years in prison or 1Months to6Months of detention; the amount of bribery and corruption in the5More than 1000 yuan dissatisfaction5Million yuan between, general a1Years to7Years in prison, so appeared a maximum limit of corruption and bribery in the first grade of the statutory punishment2Years and second grade of the statutory punishment lowest limit1The strange phenomenon of years coincident corruption in the amount 5Million yuan dissatisfaction 10 Million, in general a5Years to15Years in prison, can also be sentenced to confiscation of property, the lowest limit such corruption and bribery third grades of statutory sentence5The highest limit and second grades of the statutory punishment7Years and the emergence of the coincidence of circumstances. Similarly, when we see the amount of bribery in the behavior of people10Million yuan, general a10Years to15Years of fixed-term imprisonment or life imprisonment, may concurrently be sentenced to confiscation of property, the lowest limit such corruption and bribery fourth grades of statutory sentence10The highest limit and third grades of the statutory punishment15Years and appear coincident.

In addition, the amount of corruption and bribery in5More than 1000 yuan dissatisfaction5Million yuan, if the circumstances are serious, shall be7Years or above10Years in prison; the amount of bribery and corruption in the5Million yuan dissatisfaction10Million yuan, if the circumstances are especially serious, he shall be sentenced to life imprisonment, confiscation of property; the amount of corruption and bribery in10Million yuan, if the circumstances are especially serious, the death penalty, also be sentenced to confiscation of property. This leads to corruption and bribery among the three grades of statutory sentence gap is too large, such as the amount of bribery and corruption in the5More than 1000 yuan dissatisfaction5Million yuan between, if the circumstances are serious, the maximum penalty just10Years, and the amount of bribery and corruption in the5Million yuan dissatisfaction10Million yuan, if the circumstances are especially serious, they shall be sentenced to life imprisonment, confiscation of property. This is in fact the absolute determination of legal penalty. Once the behavior of the amount of bribery in 10 Million yuan, if the circumstances are especially serious, only one died, and the additional penalty of confiscation of property must apply. The absolute determination of legal penalty, the lack of gradient, is not conducive to the realization of the balance between crime and punishment.

3 The crime of accepting bribes sentencing by corruption processing is not science

China's criminal law on corruption, bribery sentencing provisions are exactly the same, and clearly defined the crime of bribery punishment must be based on the amount and circumstances, in accordance with the provisions of the criminal law on the crime of corruption punishment. As we know, the object of corruption crime is the public ownership of property, the damage to the society and is closely related to the amount of corruption to corruption, so the amount as the main basis for the severity of the sentence, which is consistent with the principle of suiting punishment to crime. However, bribery and corruption are noticeable differences in the scope of subject, the purpose of the crime, the objective behavior, the object and the object of crime and so on, so the two crimes in the social harm and harm extent be totally different. Integrity of the bribery crime infringes is mainly the public servants behavior, between social harmfulness caused by the amount of bribery and behavior are not necessarily proportional relationship. For example, by taking advantage of duty behavior is legitimate, the bribery crime can be divided into two kinds of situations and not perverted perverted the law. In addition, the bribery and corruption crime although all belong to the crime of corruption, but focus on the corrupt, crime of bribery is more focused on the reading level of crime, social harm nature and harm degree difference, its legal punishment content should be obvious difference. Criminal act in two kinds of crimes quality difference, applied the same set of statutory penalty allocation standard, its different properties in the amount of crime and the plot can be achieved on the same conditions, the quantitative criterion of rationality, are subject to judicial practice problems clear. So the bribery crime in the sentencing should not be compared with the penalty of the corruption offence dealt with^[31]. For example, the actor was accepting illegal foreign1Million yuan of bribery and serious "to" lead the National hundreds of million of losses and received1Million and "not pervert the law", the social harmfulness can not be put on a par with their. So, the crime of accepting bribes sentencing completely according to crime of corruption is not scientific.