中国贿赂犯罪中“贿赂”范围的重新界定及相关实务问题检讨

Since the 18th National Congress of the Communist Party in China, anti-corruption has been raised to an unprecedented height, especially with the promulgation of the criminal law amendment(9) and the latest judicial interpretation of corruption and bribery criminal cases, the academic circles have had a heated discussion on the issue of anti-corruption. At the same time, various circles of society, especially the public, are paying more and more attention to anti-corruption issues. Bribery crime is a typical form of corruption, and also the most important corruption type in China, the scope of "bribes" is the primary factor to determine the limits of bribery crime, also an important measure whether a country or region can effectively deal with various bribery or not. With the development of economy and society, the forms of corruption crime or bribery crime are also being developed, so how to define the scope of bribes is not only an old problem, but also a new one in China. This paper intends to put forward its own opinions and thinking on this issue, in order to respond rationally and calmly to the needs of the times and public opinion in theory. This paper first introduces and evaluates the differences and theoretical propositions on the scope of bribes between extraterritorial criminal legislations, international conventions and criminal law theories, which can be generalized into three types: The first is narrow sense: bribes mainly refer to property, but also includes property interests; The second is medium sense: bribes refer to property, property interests and some other specific interests; The third is broad sense: bribes refer to property, property interests and other interests. After the founding of the People's Republic of China, the definition of the bribes in China's criminal legislation has basically remained unchanged, that is, bribes refer to property. This kind of legislation can be called the narrowest sense (however, it should be noted that the relevant judicial interpretations have incorporated property interests into the scope of property). Although this kind of legislation is supported by a small part in the theoretical circle ("property theory"), the current law obviously inappropriately narrows the scope of bribes, and can’t meet the needs of judicial practice, also don’t in line with the trend of combating bribery crimes in the international community. Therefore, expanding the scope of bribes has basically become a consensus in theoretical circle, the question is to what extent. In this regard, there are several theories such as "property interests", "interests", "property interests and some non-property interests" in China theoretical circles. Based on critical analysis of the above theories, this paper argues that the scope of bribes needs to be expanded, but can’t be unrestricted. It should be defined as: property and various interests that can be measured its direct monetary value. In other words, when expanding the scope of bribes, we should not deliberately distinguish property interests and non-property interests, as long as the value of certain interests can be measured by monetary amount, they should be included in the scope of bribes. Based on the definition of bribes in this paper, we suggest that, except for specific circumstances, "sexual bribery" (sexual entertainment) should not be criminalized, and "power transaction" behavior also shouldn’t be criminalized. Not punishing these two behaviors by bribery crime law won’t lead to indulgence of crime.