Abstract：

The textual range of the concept of bidding is limited, and it is not suitable to be convicted of collusion in the process of auction, bidding, competitive negotiation, competitive negotiation and inquiry. This is not an omission in legislation, but an “intentional legal blank”, which is the meaning of the modesty of criminal law. Collusion between bidders is a typical necessary accomplice, the actor actually controls a number of affiliated companies to participate in the bid encirclement, objectively did not crowd out other competitors, the illegal behavior did not reach the degree worthy of penalty. If the construction of the project is carried out in advance after the permission of the bid issuer, or the project has been actually completed and colludes only in the process of “supplementary” tendering and bidding, it does not have the substantive legal interests of this crime. If the actor colludes with the bidding agency company, it belongs to the collusion between the bidder and the tenderer; if the bidder asks the bid evaluation expert, when the bid evaluation expert only knows the help trustee and lacks the intention of collusion between the bidder and others, the bid evaluation expert lacks the double intention of helping to commit the crime, so it is difficult to establish an accomplice in this crime. In order to determine the crime of colluding bidding, we should not only consider the necessity of punishment, but also judge the illegality of substance and inherent in criminal law according to the requirement of the principle of legality and the principle of infringement of legal interests. Furthermore, the understanding of illegality should be relative in differert branches of law.

Keyword：

crime of colluding bidding; analogical interpretation; enclosing bid; infringement of legal interests; inherent illegality of criminal law