Research on the Special Mitigating Circumstances of Bribery Crimes
Article 390 Paragraph 3 of the Criminal Law stipulates that;"A briber who voluntarily confesses to his or her conduct of offering bribes before being prosecuted may be giv-en a lighter or mitigated punishment.If the crime is relatively minor,and the briber plays a crucial role in the breakthrough made during investigation or uncovering of a major case or has any major meritorious performance,the briber may be given a mitigated punishment or be ex-empt from punishment."This provision is referred to as the provision on special mitigating cir-cumstances for the crime of bribery.There have always been controversies regarding the legiti-macy and abolition of special mitigating circumstances,resulting in two different positions on ju-dicial application:expansion and restriction.The former believes that due to the strong secre-tive characteristic of the crime and the difficulty in obtaining evidence,the special mitigating circumstances of bribery crimes should be expanded in scope and the extent of leniency should be increased.The latter believes that the role of special leniency should not be overestimated.Over the years,leniency towards bribe-givers has not produced the effect of curbing bribery crimes.On the contrary,excessive leniency towards bribery crimes may encourage bribe-givers to find ways to"hunt"public officials.This article argues that expanding the application of spe-cial mitigating circumstances for bribery crimes has significant negative effects.It not only re-duces public awareness of the harmfulness of bribery but also excessively accommodates bribers without principle or bottom line.The reduction of criminal costs will inevitably lead to the in-crease in bribery crimes,and may also promote the trend of excessive reliance on oral evidence such as confessions in judicial practice.However,there is no legal basis for excessively limiting the application of these circumstances.Judicial organs should adopt a strict application stance towards special mitigating circumstances.Strict application does not mean restricting the appli-cation.Rather,it means that judicial organs should return to the original intention of criminal law to establish this circumstance,and take whether special mitigating circumstances can sub-stantively assist the investigation and handling of relevant cases as a key condition for their ap-plication and interpret the relevant conditions of application plainly,so that they are applied where applicable and in a justifiable manner.Among them,"before being prosecuted"should be understood as"before a case is filed for investigation by a supervisory authority";"voluntary confession"should reflect the briber's initiative in the confession;and"breakthrough made dur-ing investigation"should refer to the decisive role played by the briber's active confession in the breakthrough in the investigation of the case.In cases where special mitigating circumstances exist,the magnitude of leniency should be considered comprehensively to avoid arbitrariness.
万方数据
维普
