Original title: Interpretation of the law by the case
Source: Central Commission for Discipline Inspection and State Supervision Commission website
Typical Case
A, a member of the Communist Party of China, was formerly the deputy mayor in charge of financial affairs in a certain city. He retired in 2014. B is the boss of a private financing company and C is the boss of a private real estate company. During his tenure as deputy mayor, A provided assistance to B on a number of matters. In 2016, in response to C’s request, A greeted B and helped C obtain 200 million yuan in financing from Company B. For this, C gave A 2 million yuan.
Disagreement
There are two different opinions on how to determine the nature of the 2 million yuan received by A.
The first opinion is that although A has retired, he used the influence of his original position to greet the original supervision object B and help the third person C seek benefits and receive property. His behavior constitutes the crime of using influence to accept bribes.
The second opinion is that: Although A has used the influence of his original position to greet the boss of a private enterprise for profit and receive property for the third party C, according to the current criminal law on the use of influence to accept bribes and the spirit of relevant judicial interpretations, A The act of receiving RMB 2 million cannot be regarded as the crime of taking advantage of influence to accept bribes. The behavior of A should be dealt with in accordance with the violation of integrity and discipline.
Comments
The author agrees to the second point of view.
1. The resigned national staff can only constitute the crime of taking advantage of influence and accepting bribes through the conduct of other national staff.
The “Criminal Law Amendment (7)” expresses the crime of using influence to accept bribes as “the close relatives of state personnel or other persons who are closely related to the state personnel, through the conduct of the state personnel, or use The conditions for the formation of the power or status of the national staff, through the acts of the staff of other countries, seek illegitimate benefits for the trustee, solicit the trustee’s property or accept the trustee’s property” “Resigned state staff or their close relatives” As well as other persons who are closely related to them, who use the original functions and powers or status of the resigned state staff member to carry out the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of the preceding paragraph”.
In the crime of taking advantage of influence to accept bribes by resigned state staff, how to understand the “acts of the preceding paragraph” mentioned in the criminal law? Refers to “using the conveniences of the authority or status of the national staff to pass the actions of the staff of other countries”, not “the actions of the staff of the country”. In other words, the resigning national staff can only “pass The behaviors of officials from other countries “helping the trustee for profit” may constitute the crime of using influence to accept bribes, while the act of using non-state personnel to profit from the trustee and accepting property cannot constitute the crime of using influence to accept bribes.
2. Judicial interpretations are strict and cautious in terms of incriminating conditions for accepting benefits after resignation
Generally speaking, the entrustment of the national staff who should leave the post by the non-state staff for the benefit of the third party is mostly because the national staff used the convenience of their position to help them before leaving the post. Therefore, the situation can be simplified as: non-state staff appropriately “repay” the help provided by state staff when they are working for the benefit of a third person. From a formal point of view, there is indeed a basic outline of power-to-money transactions. However, the judicial interpretation is very strict in the determination of the guilt of the behavior of seeking profit before resignation and accepting the transfer of benefits after resignation. Article 10 of the 2007 “Two Highs” “Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery” stipulates that before or after using the convenience of their positions to seek benefits for the trustee, state officials agree to accept the trustee’s property after their resignation. , And accepted after resignation, will be punished as bribery. According to the above-mentioned provisions, if a state employee accepts property after resignation and is deemed to have accepted bribes, it must be subject to a “pre-arrangement” as the condition. In 2016, the “Two Highs” “Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery” Article 13 paragraph 1, although it will be “not requested when performing duties, but afterwards accepting other people’s property based on the performance of duties” Recognized as “for the benefit of others”, and appropriately relaxed the threshold for accepting bribes after the fact. However, according to the drafter’s interpretation, this judicial interpretation refers to the circumstances in which state officials in office receive property afterwards. , Still use “pre-agreement” as a precondition for accepting bribes. It can be seen that for resigned state staff who directly accept the property of non-state staff who have previously helped, it is required to pre-arrangement. According to this spirit, even if the entrusted matter can be converted into property, if there is no agreement before , The behavior of non-state staff to “repay” state staff in disguised form by helping a third person is generally not deemed to be bribery.
3. Under limited conditions, entrustment matters with a significant benefit transmission nature can be regarded as bribery crimes
As mentioned above, for general entrustment matters, even if they have the outline of power-for-money transactions, according to the current criminal law and judicial interpretation, they should not be regarded as bribery crimes. However, if the non-state staff assisting a third party is not a general request, but an obvious behavior of the transfer of benefits, and the transfer of benefits can be converted into a specific amount, and both parties know this well, then you can Treat non-state staff as bribers, and state staff and third parties as accomplices in bribery crimes. For example, in the above dispute case, if C is a specific related person of A, B lends C 100 million yuan to him for two years according to A’s request, and at the same time does not charge any interest. Considering that the nature of the transfer of benefits is very obvious, It can be regarded as the property that A and C have jointly received from B, and the fixed interest on bank loans in the same period can be used as a reference for the determination of the amount of bribes.
When the above situation is directly identified as the state employee and a third party jointly accepting the property of the non-state employee who has been entrusted, the reasons why the non-state employee gave the property to the state employee must also be considered, which can be divided into the following two situations: One is that the state employee used his authority to provide help to the non-state employee before resignation. According to the previous discussion, in this case, the two need to have a clear agreement on the “transportation of benefits” before resignation in order to be regarded as accepting bribes. Crime, otherwise it should not be determined. The second is that after the national staff resigned, they used the influence of the original position to help the non-state staff member, or the non-state staff member had specific entrustment matters that required the national staff member to use the influence of the original position to help. Such circumstances have already met the constitutive requirements of the crime of using influence to accept bribes, and can be regarded as the crime of using influence to accept bribes.
Generally speaking, the behavior of state employees who have resigned from their employment through the use of non-state employees to seek benefits for third parties and receive properties should be considered as a crime of bribery. It is only in situations where the nature of the transfer of benefits is very obvious. , Only when the relevant conditions are met can it be considered as a crime of bribery. (Ai Ping)
.