Traditional China is a humane society, for example, asking someone to talk about the situation before doing something, and thanking them after the matter is completed, money is not the main content. In contemporary society, the society of human affection is no longer "love", and property is the main content, for example, if you are not sure before the exam, the candidate entrusts the intermediary with 50,000 yuan to let the university teacher take care of it. In the end, it was learned that the intermediary had embezzled property, and the examinee questioned the legal responsibility of the intermediary on the self-media. From a legal point of view, the examinee has constituted the crime of substitution of the examination (attempt), and the intermediary has constituted the crime of introducing bribes.
Humane society is no longer "love"
1. The reason why there is no "emotion" in the human society
I lived in a rural area in elementary school and retired on March 5 this year. More than 40 years ago, Chinese and mathematics teachers determined their own students to participate in competitions. Before the competition, the teacher organizes students to focus on counseling, among which, the determination and centralized counseling of the competition students is the combination of human affection and rationality. On the one hand, the children of teachers must have the conditions to participate in the competition, such as I was selected, and the children of the villagers are also selected. On the other hand, a relatively closed environment is a simple prerequisite for a humane society, for example, urbanization is a society of strangers.
After the urbanization of society, most people have not changed their concepts to adapt to unfamiliar society, such as the common existence of hometown associations. With the establishment of chambers of commerce of different origins, a new professional group has been formed in society, that is, brokers. The daily behavior of brokers is that they claim to know a certain division chief, bureau chief, etc., and have a specific relationship with officials or experts, giving ordinary people the impression that they are omnipotent, and that things that can be solved by spending money are not things. The broker professional group has existed for a long time, and the society is no longer "love", and property is the main content, for example, ordinary people have to give "red envelopes" through intermediaries for surgical treatment.
On the mainland, the central government has raised objections to "judicial brokers," but judicial practice has not been able to deal with them. The reason for this is that scholars interpret the independent helper in the Criminal Code as a joint crime. For example, paragraph 1 of the Criminal Code of 1979 provides for the offence of accepting bribes. Paragraph 3 stipulates that whoever offers or introduces bribes to state functionaries shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention. Most legal professionals can recognize that the offence of introducing bribes is an independent aider. Article 388 of the 1997 Criminal Law stipulates the crime of accepting bribes, and Article 392 provides for the crime of introducing bribes.
2. Introduce the constitutive elements of the crime of bribery
Article 392 of the current Criminal Law stipulates that whoever introduces bribes to a state functionary and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention and shall also be fined. According to the analysis of the mainstream theories of crime in mainland China, the constitutive elements of the crime of bribery are as follows:
In terms of the subject of the crime, the crime of introducing bribes is a general subject, that is, the introduction of bribes, where the circumstances are serious, and natural persons who have reached the age of 16 constitute a crime. Accordingly, there is no legal basis for the relevant state organs to determine the jurisdiction of this crime as the procuratorate or the supervision organ. It is the current practice of judicial organs to determine jurisdiction on the basis of similar crimes, and the punishment of "judicial brokers" must be based on the specific crime.
In terms of the subjectivity of the crime, the crime of introducing bribery is an intentional crime. Introductions by others, or through the introduction of others, do not affect the intentional establishment of this crime. The perpetrator's direct bribery to a state functionary constitutes the crime of offering bribes, and the offering of bribes through an intermediary still constitutes this crime. Bribery through an intermediary is an accessory to the crime of introducing bribes, and accordingly, there is no lack of expectation that the crime of introducing bribes by others constitutes the possibility of constituting the crime of introducing bribes, that is, the general public also believes that it constitutes a crime.
In terms of the object of the crime, the crime of introducing bribery infringes on the credibility of state institutions, including state-owned entities. For example, if a candidate entrusts an intermediary with 50,000 yuan to ask a university teacher to take care of him, and the intermediary receives 50,000 yuan, the examinee has doubts about the credibility of the university, and whether the teacher takes care of it is not the main issue concerned by introducing the crime of bribery.
In the objective aspect of the crime, the introduction of the crime of bribery consists of two factors. The first factor is to pay bribes to state functionaries, or falsely claim to have paid bribes to state functionaries, for example, if the university is not private, the intermediary constitutes this crime. The second factor is that the circumstances are serious, such as the relatively large amount of property embezzled and the successful bribery and improper obtaining of benefits, which can be assessed as serious circumstances. In terms of objectivity, it should be noted that the misappropriation of property by an intermediary does not constitute the crime of fraud, and the reason is that the intermediary did not conceal his identity.
Introduce the constitutive elements of the crime of bribery
3. Reasons for low educational outcomes
In the mainland, students attending higher education require passing the college entrance examination to enroll. Many scholars in the field of education believe that the college entrance examination is equivalent to the ancient champion examination, and the practice of the college entrance examination is divided by region, for example, famous universities have reserved more places for candidates in Shanghai, Beijing and other cities. The ancient champion examination is equivalent to the modern "civil servant" examination, which selects reserve cadres for the state. For example, Article 8 stipulates that the State shall help and support the development of higher education in minority areas and train high-level professionals for ethnic minorities in accordance with their characteristics and needs.
It is also unfair to select talents based on scores in the college entrance examination, but scholars in the field of education have misunderstood the meaning of "all-round development" of students. The three aspects of "morality, intellect and physique" are comprehensive, and the all-round development of "physique" can be recognized as impossible, for example, weightlifters cannot engage in sprinting. Due to the existence of the education market, the all-round development of "intelligence" is misunderstood, for example, most primary school students currently have different interest classes. The result of the all-round development of "intelligence" is that "if you can't write something, you can't do it", for example, many public officials write year-end summaries with a national template reference.
For example, students with writing talent cannot meet the "threshold" of universities due to poor math scores and other reasons. For example, the colloquialization of laws and policies in the Yan'an period is due to the poor language ability of the masses, and there are still more colloquialisms. The expression of many books and papers still tends to be foreign language, which is different from the traditional method of discourse in the mainland.
At the national level, the "flaws" of the college entrance examination system have been understood, and the substitution of exams and other crimes is a legal way to overcome the flaws. Article 284-1 of the Criminal Law systematically stipulates the "crime of examination", but scholars of criminal law also interpret "state examinations prescribed by law", and scholars explain that the crime of examination does not apply to full-time institutions of higher learning, for example, self-study examinations are applicable to single-subject examinations, while full-time single-subject examinations are not applicable. Both self-study and full-time single-subject examinations are authorized by the Higher Education Act, and the poor explanations of scholars have greatly reduced the level of full-time graduates.
As far as the offence of substitution of examinations is concerned, "taking the examination for others" is easy to understand, e.g., finding someone to take the examination in lieu of the examination, etc. In judicial practice, most people's understanding is that "the whole process" is instead of an examination, and the invigilator violates the regulations to guide students to answer questions, or corrects the examination papers to "take care", which also constitutes the crime of substituting the examination, for example, entrusting an intermediary to let a university teacher take care of them.
Substitution of examinations and other crimes
As far as the legal liability of the intermediary for misappropriation of property is concerned, there is also a solution of "razing against razing", which is legally referred to as the "fruit of the poisonous tree". For example, Professor Zhang Mingkai and other professors have discussed the legal liability of bribe-takers for embezzlement of property in Criminal Law, which can guide the current practice of "anti-fraud". On the one hand, introducing a bribe to a bribe person to "peacefully" obtain bribe property can be assessed as custody, and refusal to return the property in custody may be found to be the crime of embezzlement. On the other hand, the crime of embezzlement is a case that is handled only after a complaint, and the bribe giver or fraudster does not dare to file a private prosecution. The "fruit of the poisonous tree" can be used to curb bribery or telecom fraud.