According to the November 28, 2008 the Supreme People's court, the Supreme People's Procuratorate "for commercial bribery in criminal cases the law applicable to certain opinions", the commercial bribe crime involvingThe criminal lawThe following eight rules: (1) on charges of bribery of non national staff (The criminal lawArticleArticle one hundred and sixty-three); (2) on the non national staff bribery (The criminal lawArticleArticle one hundred and sixty-four); (3) the bribery crime (The criminal lawArticleArticle three hundred and eighty-five); (4) the unit bribery crime (The criminal lawArticleArticle three hundred and eighty-seven); (5) (the crime of briberyThe criminal lawArticleArticle three hundred and eighty-nine); (6) to the unit crime (The criminal lawArticleArticle three hundred and ninety-one); (7) the introducing bribe crime (The criminal lawArticleArticle three hundred and ninety-two); (8) the unit crime (The criminal lawArticleArticle three hundred and ninety-three).

 

A, bribery of non national staff

Non state staff taking bribes the crime, refers to a company, enterprise or other unit staff in taking advantage of the cheap, extort or accept bribes, for the benefit of others, a larger amount of behavior.

(a)

Object of a crime

Non national staff bribery object of crime is companies, enterprises and other units of the management system and clean duty. No one can acquire their positions against the interests, employed by companies, enterprises and other units of the personnel, wages, bonuses have been paid, not in addition to the use of the work will get other illegitimate interests. Otherwise, constitutes the post is not cheap. Act for the interests of others or promise bribes for the interests of others behavior, whether or not to the unit caused by the actual economic losses, are on the company, enterprise or any other unit management system against.

The subject of crime

Behavior subject is the company, enterprise or other non state owned units of staff, including the director, supervisor, manager, director, accounting and other staff. State-Owned Company, enterprise or other state-owned units engaged in public service and State-Owned Company, enterprise or any other state owned units assigned to non State-Owned Company, enterprise or other unit to engage in public service, the subject does not belong to the.

The objective aspect of crime

The objective aspect of the performance of using the convenience of duty, extort or accept bribes, for the benefit of others, a larger amount of behavior.

1 the duty then

When a company, enterprise or any other unit staff to facilitate their duty the manager, responsible for handling, or directly involved in a particular job.

The 2 claim or illegally accept the property of others

"Extort", refers to the open or implied request property from others. "Accept bribes", refers to the unfair to accept the trustees offered to property.

3 be to seek benefits for others

"Seeking the interests for others", generally refers to: first, commitment to seeking legitimate, lawful or improper, unlawful interests, second, the intention of seeking legitimate, lawful or improper, unlawful interests, third, has been seeking the right, legal or improper Science Ministry of industry for others                 , not legitimate interests.

4 large amount

5000 yuan

The subjective aspect of crime

Elements of subjective deliberately. Bribery behavior he would endanger the companies, enterprises and other units of the management order and fair market order and intentionally.

(two) the economic exchanges in the non identified state of bribery crime (article second paragraph 163rd)

The application of this provision, should have three conditions:

1 occurred in the economic intercourse

2 using the duty then

3 in violation of state regulations, kickbacks, charges in various names

4 will receive the property owned by individuals

If the actor received a large amount of commissions, fees, record or turned in to the company, enterprise, but not to all individuals, no crime is constituted.

(three) punishment

Guilty of this crime, is less than five years imprisonment or criminal detention; make the huge amount, at more than five years in prison, or to confiscation of property.

Two, the non national staff bribery crime

The non national staff bribery crime, refers to seek illegitimate interests, giving the company, enterprise or other unit staff to property, large amount of behavior.

(a)

The subject of crime

The general subject, including natural person and unit.

The objective aspect of crime

Objective aspect is to give the company, enterprise or other non state owned units of staff to the behavior of property. Here the "give", including the behavior of people take the initiative to give in, including company, enterprise or other unit staff for passive under.

Bribery to companies, enterprises or other units of staff, the larger amount, to constitute a crime; otherwise, does not constitute a crime. In practice, personal bribe amount over 10000 yuan, unit bribery amount of 200000 yuan of above, as a "large amount", shall be investigated for criminal responsibility.

The subjective aspect of crime

Deliberately, and have to seek illegitimate interests purpose.

(two) punishment

Guilty of this crime, is more than three years or criminal detention; the enormous amount of, at more than three years to ten years in prison, and shall also be fined; unit commits this crime, it shall be fined, and the person in charge directly responsible and other persons directly responsible in accordance with the provisions of punishment.

Three, the crime of accepting bribes

Bribery crime, refers to the state personnel who take advantage of their office, demand property from others, or accept bribes, for the benefit of his behavior.

(a)

The subject of crime

The subject of crime is a special subject, or national staff, the range should be determined according to the provisions of the criminal law "article ninety-third".

In addition, according to the legislative interpretation, villagers' committees and other grassroots organizations personnel to assist the people's Government in the administration, taking advantage of the implementation of the act, shall be punished for taking bribes.

State personnel who take advantage of their office to seek benefits for trustees, and agreed with the request of personnel, the retired please accept the trustee's property, which constitutes a crime, the fear of crime of bribery conviction and punishment.

The crime subjective -- deliberately

The object of the crime -- honesty

The crime objective

1 the behavioral object

Property, how to explain

2 patterns of behavior

(1) property from others

Refers to the country staff to express or implied way asking for the behavior of property, which is often referred to as bribes. The bribes don't think the benefit of others as a necessary condition, no matter whether the bribe seekers intent or indeed for the benefit of others, as long as the others the bribes, he shall be punished for taking bribes. Initiative and extortion of bribes have, so than general bribery behavior has more serious social harm.

(2) accept bribes, for the benefit of others

The briber active bribery case, illegal land taking bribes and promises, or have to bribe people the benefit of the behavior in business activities.

According to the relevant judicial interpretations[1]The following behavior, also belong to accept bribes:

The first, The form of the transaction take bribes.

State personnel who take advantage of their office for the benefit of trustees, in the form of the following transaction please accept the trustee's property, shall be punished for taking a bribe: the purchase of housing, cars and other goods to the trustees to significantly lower than the market price of the sale of housing, automobile and so on; items to the trustees to clearly higher than the market price; otherwise transaction form of property as trustees of illegal. The amount of bribery transactions in accordance with the local market price and the actual price paid the balance computation. Market price includes merchandise operator set in advance not directed at a specific person the lowest discount price. According to the various preferential trading conditions merchandise operator set in advance, to buy goods at discounted prices, do not belong to bribery.

Second, performance shares bribery.

"Dry", refers to the shares obtained without making contribution. State personnel who take advantage of their office, for the benefit of trustees, please accept the trustee offer shares, punished for taking bribes. The equity transfer registration, or evidence of any actual transfer of shares, the amount of bribery by transferring behavior of stock value, the dividends as bribery fruits. The actual transfer of shares outstanding, to share the nominal gain actual profit amount, should be identified as the amount of bribery.

Third. To establish a company cooperation investment in the name of accepting bribes.

State personnel who take advantage of their office for the benefit of trustees, funded by the trustees, "cooperation" start-up companies or other "cooperative" investment, shall be punished for taking a bribe. The amount of bribes as trustees for the amount of capital contribution of national staff. State personnel who take advantage of their office for the benefit of trustees, on behalf of the company or other investment cooperation offered access to "profit", no actual investment and participation in management, business, shall be punished for taking a bribe.

Fourth. Commissioned by the trustees of investment securities, futures or any other financial management of taking bribes in the name of.

State personnel who take advantage of their office for the benefit of trustees, commissioned by the trustees of investment securities, futures or any other financial name, without making contribution "income", or even actual investment, but the "proceeds" was significantly higher than the contribution due benefits, shall be punished for taking a bribe. The amount of bribery, the former case, "return" to the amount calculated; after the situation, "the difference in income" sales and investment income earned.

Fifth. In the form of gambling bribery.

State personnel, taking advantage of his position to seek benefits for trustees to gambling, accepting bribes, bribery. In practice, we should distinguish the difference between bribery and general gambling, entertainment. Specific identification, the main should be combined with the following factors: the background, judge the gambling occasion, time, number of sources; gambling; gambling participants have no conspirators; size specific circumstances and the amount of winning or losing money.

Sixth, special relationship "nominal" pay.

State personnel who take advantage of their office for the benefit of trustees, demand or accept qingtuo people to give the specific relationship between the people the name of the organization of work, so that the special relationship is not the actual work but get the salary, shall be punished for taking a bribe. Here the "special relationship", refers to the country staff have close relatives, Mistress (husband) and other common interests of the people.

(two) economic bribery

385th the provisions of the second paragraph: "the state personnel in economic activities, accept all kinds of commission, fees in violation of state regulations, to all individuals, shall be punished for taking a bribe."

Economic activities

Kickbacks, charges in various names in violation of state regulations

To all individuals. If the entry to the unit, it does not constitute.

(three) the mediation bribe

Article 388th stipulates: "the state working staff utilize the convenience of personal power or position, through other national staff positions on the behavior, to seek illegitimate interests as trustees of property as trustees, ask for or accept property as trustees, for taking bribes." This is called the mediation bribe. With the general difference for bribery:

The 1 act did not directly use my authority as trustees to seek interests, but to use his authority or the status of the convenient conditions formed by other state working staff's behavior, to seek illegitimate interests as trustees. Here the "use my authority or status facilities", is refers to between the actor and the state working staff membership, no relationship, but the influence behavior made use of his power or status and working relationship.

2 for the trustees to seek illegitimate interests interest only. For general bribery, seeking legitimate interests or unfair interest does not affect the establishment of the crime of accepting bribes, but the mediation bribery case, if for the legitimate interests, it does not constitute a crime. Interest is justified, the main considerations: first, the interests of property is legitimate or legal interests; two, the way is justified.

(four) the boundaries of the crime

Line of 1 bribery and accepting gifts

The two limit is mainly analyzed from the following aspects: the existence of family relationship; proper reason no gifts; gifts is duty behavior for each other; the gift is to facilitate the use of his position to seek benefits for each other; whether the commitment or is or has been for the benefit of each other; the number and value of gifts property; whether the gift is concealment. If the acceptance of gifts in the name, for taking bribes, should be held accountable for taking bribes.

Line of 2 bribery and obtain reasonable compensation

State personnel in the legal policy and administrative discipline within the allowable range, the use of spare time, vacation time, with their own labor to others temporarily to work on a project or providing a service, and reasonable access to labor remuneration, does not belong to bribery. If it is in violation of national laws and policies, using his position to seek benefits for others and bribes from behavior, belong to bribery.

3 by the special relationship of accepting bribes

State personnel who take advantage of their office for the benefit of trustees, inspired by the trustees in form, the relevant item to a specific relationship between the people, shall be punished for taking a bribe. Special relationship with the national staff collusion, joint implementation of the acts mentioned in the preceding paragraph, the special relationship with the accomplice of bribery crime. Outside the special relationship to other people and working personnel of the state plan, by the state personnel who take advantage of their office for the benefit of Trustees of property as trustees, accepting their joint possession, shall be punished as an accomplice in the crime of accepting bribes.

4 bribes articles not for that the change of ownership situation

State personnel who take advantage of their office for the benefit of trustees, please accept the trustee houses, cars and other items, did not change the registration of the ownership or use another name for the registration of ownership changes, does not affect the determination of acceptance of bribes.

Identified by the housing, automobile and other items as the object of bribery, we should distinguish the attention and borrow. Specific identification, in addition to the account or a written agreement, which should be combined with the following factors: (1) to determine reasonable causes no borrowing; (2) whether the actual use; (3) use the length of time; (4) there is no condition; (5) there is no return of the idea and behavior; (6) accept property return or that make case. National staff received property as trustees timely return or surrender of bribery, not. National staff bribery, because of their own or their bribery related people, things were investigated, in order to cover up the crime and returns or hands, do not affect the determination of the crime of accepting bribes.

5 the job as trustees to profit, after accepting property identification

State personnel who take advantage of their office as trustees to seek interests before or after accepting, agreed in its property as trustees, and receive after leaving office, shall be punished for taking a bribe. State personnel who take advantage of their office for the benefit of trustees, before and after leaving continuously from a property as trustees, before and after leaving take part shall be included in the amount of bribery.

(five) identifying accomplished

General to collect property is completed, as long as the perpetrator or accepting property, belongs to the bribery crime, whether it is for the benefit of others, does not affect the establishment of the crime.

(six) this crime and other crime boundary

And the limit of non national workers taking bribes

The two crimes are taking advantage of his position, ask for or accept others' property behavior. The two difference is:

(1) the subject of crime of different. The former is the main body of the working personnel of the state; the latter is the main body of the company, the enterprise or other units of staff.

(2) the object of the crime is different. The former is the probity of the latter; for non national staff and honest act.

(3) the objective aspect of crime is different. The former is taking advantage of his position, extort or accept bribes for the benefit of others, bribery crime does not necessarily require large amounts of property from others, bribery, not for the benefit of others; the latter both for the property of others or to accept bribes way all requirements, is seeking the interests for others this element, and ask for or accept property must reach a large amount of.

Boundaries and fraud, blackmail and impose exactions on Crime

The key difference is that there are no using the convenience of duty. National staff to take advantage of their positions to accept bribes to seek benefits for others as, for the larger amount of property of others, but did not and do not plan to use his position to seek benefits for others, does not constitute the crime of bribery, fraud should be punished. State personnel who take advantage of their office, extortion dependant on the property of the people, which belongs to the bribe, shall be punished for taking bribes; state functionaries to coerce blackmail, threats in the form of property of others, but did not use duty then, should be to blackmail and impose exactions on crime, and does not constitute the crime of bribery.

(six) punishment

The crime of bribery and corruption crime same punishment.

Four, the crime of bribery

Bribery crime, refers to seek illegitimate benefits, gives property to a state functionary behavior.

(a)

The objective aspect of crime

The behavioral object is property, property interests.

Giving money or property to a state functionary behavior. Offering property can be a way to take the initiative to give, and can also be given (i.e. for property in the national staff were forced to deliver the property). However, if be blackmailed national staff and forced to pay property, I also gains no illegitimate interests, not bribery. According to the "criminal law" provisions in the second paragraph 389th, in economic activities, in violation of state regulations, gives property to a state functionary, large amount of, or in violation of state regulations, to state functionaries in kickbacks, fee, to bribe crime theory. Here in violation of state regulations, refers to violation of laws, administrative rules and regulations about giving state workers, kickbacks, gifts fee economic activities, only gives publicly in the account, regulations and shall not in secret outside the account given.

The subjective aspect of crime

Subjective elements of intent, and have to seek illegitimate interests purpose. The so-called illegitimate interests, is in accordance with the provisions of laws and regulations, trustees should not get the benefit of.

(two) identification

Bribery is often expressed as the active behavior, subjective to seek illegitimate interests, the interests are realized does not affect the establishment of this crime, but if it is being blackmailed and gives property to a state functionary, gains no illegitimate interests, do not constitute a crime.

(three) punishment

Commits the crime of offering bribes, is less than five years imprisonment or criminal detention; bribes to seek illegitimate interests, if the circumstances are serious, or causes serious losses to state interests, place above five years imprisonment less than ten years; if the circumstances are especially serious, department for more than ten years of fixed-term imprisonment or life imprisonment, can also be sentenced to confiscation of property. Briber before prosecution take account of bribery, or a mitigated punishment or be exempted from punishment. In this case, the behavior person has voluntarily surrender, but not the surrender provisions directly applicable law, special provisions for leniency. That is to say the concurrence of provisions of the general provisions and the specific provisions, apply rejection -- General rules and regulations.

 

Five, other charges

The unit bribery crime, refers to the state organs, enterprises, institutions, State-Owned Company, and people's organizations claim, receive other property illegally, for the benefit of others, if the circumstances are serious behavior.

To the unit crime

The introducing bribe crime

The unit crime