Corruption and bribery cases
(3) Bribery cases (Articles 385, 386, 388, Paragraph 3 of 163, Paragraph 2 of 184).
The crime of accepting bribes refers to the act of state functionaries taking advantage of their positions to ask for other people's property, or illegally accepting other people's property to seek benefits for others.
"Taking advantage of one's position" refers to taking advantage of the power within one's position, that is, the power to take charge of, be responsible for or undertake a public affair and the convenient conditions for its formation.
Asking for other people's property, whether or not "seeking benefits for others", can constitute the crime of accepting bribes. Those who illegally accept other people's property must have the conditions of "seeking benefits for others" in order to constitute the crime of accepting bribes. However, whether the interests sought for others are justified or not, and whether the interests sought for others are realized, does not affect the determination of the crime of accepting bribes.
State functionaries who, in violation of state regulations, accept kickbacks and handling fees in various names in economic exchanges and own them personally shall be investigated for criminal responsibility for accepting bribes.
Personnel engaged in official business in state-owned companies and enterprises, and personnel appointed by state-owned companies and enterprises to engage in official business in non-state-owned companies and enterprises, take advantage of their positions to ask for or illegally accept other people's property to seek benefits for others, or accept kickbacks and service fees in various names in violation of state regulations in economic exchanges, which are owned by individuals, shall be investigated for criminal responsibility for accepting bribes.
Staff of state-owned financial institutions and personnel assigned by state-owned financial institutions to non-state-owned financial institutions to engage in official business, who extort or illegally accept other people's property in financial business activities to seek benefits for others, or who, in violation of state regulations, accept kickbacks and service fees in various names for personal possession, shall be investigated for criminal responsibility for accepting bribes.
Any state functionary who, by taking advantage of his authority or position, seeks illegitimate interests for the trustee through the behavior of other state functionaries and asks for or accepts the trustee's property shall be investigated for criminal responsibility for accepting bribes.
Suspected of one of the following circumstances, it shall be placed on file:
1. The amount of personal bribery is more than 5,000 yuan;
2. The amount of personal bribery is less than 5,000 yuan, but under any of the following circumstances:
(1) The interests of the state or society have suffered heavy losses due to bribery;
(two) deliberately making things difficult for the relevant units and individuals, causing adverse effects;
(3) extorting property by force.
Four. supplementary terms
(2) The "dissatisfaction" of the crime amount in these Provisions refers to approaching the amount, reaching more than 80% of the amount.
(three) the "direct economic loss" in these Provisions refers to the actual value of the property damage and reduction caused by the direct causal relationship with the behavior. "Indirect economic loss" refers to other losses caused and implicated by direct economic losses, including the loss of interests that may be obtained under normal circumstances and various legal fees and expenses paid for resuming normal management activities or recovering the losses caused.
(4) The term "seeking illegitimate interests" in bribery crimes as mentioned in these Provisions refers to seeking benefits in violation of laws, regulations, national policies and the provisions of various departments in the State Council, and seeking help or convenience in violation of laws, regulations, national policies and the provisions of various departments in the State Council.
Reply of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Implementation of Supplementary Provisions for Punishing Corruption and Bribery Crimes (1989. 1 1.6 Law [Research] No.35)
Several problems about accepting bribes
(A) On the issue of bribery
The subject of accepting bribes as stipulated in Article 4 of the Supplementary Provisions refers to national staff, staff of collective economic organizations or other personnel engaged in public affairs.
"Other personnel engaged in public service" refers to those who engage in public service according to law or are entrusted to engage in public service, except for state staff and staff of collective economic organizations.
(2) How to understand "taking advantage of one's position" in the crime of accepting bribes? In the crime of accepting bribes, "taking advantage of one's position" refers to taking advantage of one's authority or position-related convenience. "Authority" refers to the power within my position. "Job-related" refers to using my authority or position, although I don't use my authority directly. State functionaries do not directly use their powers, but use the convenience of their powers or positions to seek benefits for the trustee through the behavior of other state functionaries. If they ask for or illegally accept property from the trustee, they shall be punished as accepting bribes. Those who simply use the relationship between relatives and friends to work for the trustee and receive property from it should not be punished for accepting bribes.
(3) Bribing a divorced or retired state functionary. Retired state functionaries use their original authority or position to seek benefits for the trustee through the behavior of on-the-job state functionaries, and if they ask for or illegally accept the trustee's property, they shall be punished as accepting bribes.
(IV) How to master the behavior that constitutes the crime of accepting bribes According to the provisions of the first paragraph of Article 4 of the Supplementary Provisions, we should master the behavior that determines the crime of accepting bribes:
1. Anyone who asks for other people's property, whether or not "seeking benefits for others", can constitute the crime of accepting bribes.
2. Illegally accepting other people's property and "seeking benefits for others" can constitute the crime of accepting bribes. Whether the interests sought for others are justified or realized does not affect the establishment of the crime of accepting bribes.
Notice of the Supreme People's Court on Resolutely Cracking Down on Cheating Export Tax Refund and Severely Punishing Criminal Activities in Financial and Fiscal Fields (1996.2. 17 Fa Fa Fa Fa [1996] No.5)
Fourth, the criminal responsibility of the staff of state organs should attach importance to the criminal responsibility of the staff of state organs such as taxation, customs and banks for dereliction of duty. Whoever colludes with other criminals at home and abroad or participates in criminal activities in the field of finance and taxation shall be given a heavier punishment. Among them, those who embezzle and accept bribes should be punished for several crimes and be given a heavier punishment.
Notice of the Supreme People's Court on Several Provisions on Correctly Applying Probation to Criminals of Corruption, Bribery and Embezzlement of Public Funds (Fa Fa Fa Fa [1996.6.26] No.21).
According to the relevant provisions of the Criminal Law, combined with the actual trial work, the following provisions are made on the application of probation in the trial of cases of corruption, bribery and misappropriation of public funds:
1. State functionaries who embezzle or accept bribes in an amount of more than 2,000 yuan but less than 10,000 yuan, if the circumstances of the crime are minor, can voluntarily confess and actively return the stolen goods, and do show repentance, can apply probation.
Two, national staff corruption, bribery 1 ten thousand yuan, except for voluntary surrender or meritorious service and other statutory mitigating circumstances, generally not applicable to probation. If the amount of corruption and bribery of state functionaries is more than 10,000 yuan but less than 50,000 yuan, according to the specific circumstances of the case, the second paragraph of Article 59 of the Criminal Law shall be applied to mitigate the punishment, and if a person is sentenced to fixed-term imprisonment of not more than three years, probation is generally not applicable. If the crime is minor and the stolen goods are returned actively, which plays a key role in major production and scientific research projects, there are special needs, or there are other special circumstances, probation can be applied, but it must be strictly controlled.
Three, the following criminals who embezzle, accept bribes and misappropriate public funds shall not be suspended;
(a) criminal acts have caused great losses to the interests of the state, the collective and the people;
(2) Failing to return stolen goods or repent;
(three) criminal motives, means and other circumstances are bad, or the illegal money is used for speculation, smuggling, gambling and other illegal activities;
(four) the principal of a major crime or a combination of several crimes;
(5) Having been subjected to administrative punishment or criminal punishment for economic crimes;
(six) the property involved in the crime belongs to the national disaster relief, emergency rescue, flood control, special care and relief, and the circumstances are serious.
Official Reply of the Supreme People's Court on How to Deal with the Behavior of State Staff Accepting Property by Taking Advantage of Their Positions after Retirement (Implemented on July 26th, 2000 by 2 1).
Jiangsu Higher People's Court:
Jiangsu Higher People's Court [1999] No.65 "Request for instructions on whether accepting property after retirement constitutes a crime of accepting bribes by state employees while they are in office" has been received. After study, the reply is as follows:
If a state functionary takes advantage of his position to seek benefits for the trustee and agrees with the trustee in advance to accept the trustee's property after retirement, which constitutes a crime, he shall be convicted and punished for accepting bribes.
Opinions of the Supreme People's Procuratorate and the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery (Fa Fa Fa Fa Fa [2007] No.22)
In order to punish the criminal activities of accepting bribes according to law, according to the relevant provisions of the Criminal Law, we now put forward the following opinions on several issues concerning the specific application of law in handling criminal cases of accepting bribes:
I. On the issue of accepting bribes in the form of transactions
State functionaries who, by taking advantage of their positions, seek benefits for the trustee and accept the trustee's property through the following transactions shall be punished as accepting bribes:
(1) Buying houses, cars and other items from the trustee at a price significantly lower than the market price;
(2) selling houses, cars and other items to the trustee at a price significantly higher than the market price;
(3) Illegally accepting the trustee's property through other transactions.
The amount of bribes is calculated according to the difference between the local market price and the actual payment price at the time of transaction.
The market prices listed in the preceding paragraph include the lowest preferential prices set by commodity operators in advance that are not targeted at specific groups of people. Buying goods at preferential prices according to various preferential trading conditions set by commodity operators in advance does not belong to the crime of accepting bribes.
Second, on the issue of accepting performance shares.
Performance shares refer to shares acquired without capital contribution. State functionaries who take advantage of their positions to seek benefits for the trustee and accept the performance shares provided by the trustee shall be punished for accepting bribes. If the registration of equity transfer is handled, or there is relevant evidence to prove that the shares have actually been transferred, the amount of bribes will be calculated according to the value of the shares at the time of transfer, and dividends will be treated as bribes. If the shares are not actually transferred and benefits are obtained in the name of share dividends, the actual profit amount shall be recognized as the amount of bribes.
Three, on the issue of accepting bribes in the name of starting a company and other cooperative investments.
Any state functionary who takes advantage of his position to seek benefits for the trustee, asks the trustee to invest, "cooperate" to set up a company or make other "cooperative" investments shall be punished as the crime of accepting bribes. The amount of bribery is the trustee's contribution to the national staff.
State functionaries who take advantage of their positions to seek benefits for their clients and obtain "benefits" in the name of cooperative companies or other cooperative investments without actually contributing or participating in management and operation shall be punished as bribery.
Four, about accepting bribes in the name of entrusting the trustee to invest in securities, futures or other entrusted financial management.
If a state functionary takes advantage of his position to seek benefits for the trustee in the name of entrusting the trustee to invest in securities, futures or other entrusted wealth management, and gains "income" without actually making capital contribution, or the "income" obtained is obviously higher than the income due to capital contribution, it shall be punished as bribery. The amount of bribes, in the former case, is calculated by the amount of "income"; In the latter case, it should be calculated according to the difference between the amount of "income" and the amount of capital contribution.
V. Determination of accepting bribes in the form of gambling.
According to Article 7 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Gambling Criminal Cases, it is a crime of accepting bribes if a state functionary takes advantage of his position to seek benefits for the trustee and accepts the trustee's property through gambling.
In practice, we should pay attention to distinguish between bribery and gambling activities and entertainment activities. The following factors should be considered in the specific identification: (1) background, occasion, time and frequency of gambling; (2) the source of gambling funds; (three) whether there are other gambling personnel conspiring in advance; (4) the specific situation and amount of winning or losing.
Six, about the specific relationship of "front name" to receive remuneration.
If a state functionary takes advantage of his position to seek benefits for the trustee, and asks or accepts the trustee to arrange work for the special trustee in the name of making the special trustee get the so-called salary without actual work, it shall be punished as the crime of accepting bribes.
Seven, on the issue of bribery of specific parties.
If a state functionary takes advantage of his position to seek benefits for the trustee and instructs the trustee to give relevant property to a specific related person in the form listed in this opinion, he shall be punished as accepting bribes.
Where a specific related party conspires with a state functionary to commit the acts mentioned in the preceding paragraph, it shall be punished as the crime of accepting bribes. If a person other than a specific related person conspires with a state functionary, and the state functionary seeks benefits for the trustee by taking advantage of his position, and both parties jointly possess the property of the trustee after accepting it, he shall be punished as a * * * offender of the crime of accepting bribes.
Eight, on the issue of accepting bribes without changing ownership.
If a state functionary takes advantage of his position to seek benefits for the trustee, accepts the trustee's house, car and other articles, fails to register the change of ownership or borrows the name of another person to register the change of ownership, it will not affect the determination of the crime of accepting bribes.
Attention should be paid to the distinction between the crime of accepting bribes with things such as houses and cars. In the specific identification, in addition to mutual explanation or written agreement, the following factors should also be combined to judge: (1) whether there is a reasonable reason for borrowing; (2) Whether it is actually used; (3) the length of borrowing time; (4) Whether there are return conditions; (5) Whether there is the intention and behavior of returning.
Nine, about the return or transfer of property after receiving it.
If a state functionary returns or turns in the property of the trustee in time after accepting it, it does not belong to bribery.
After accepting a bribe, a state functionary who is returned or handed in for covering up a crime after being investigated for himself or someone or something related to his bribery does not affect the determination of the crime of accepting bribes.
X. Seeking benefits for the trustee while in office and accepting property after leaving office.
A state functionary who takes advantage of his position to seek benefits for the trustee, agrees to accept the trustee's property before or after leaving his post, and accepts it after leaving his post, is regarded as accepting bribes.
If a state functionary takes advantage of his position to seek benefits for the trustee and continuously accepts the trustee's property before and after leaving his post, the part received before and after leaving his post shall be included in the amount of bribes.
XI。 On the Scope of "Specific Related Party"
The term "special stakeholders" as mentioned in this opinion refers to those who have close relatives, mistresses (husbands) and other interests with state functionaries.
Twelve, on the correct implementation of the criminal policy of combining leniency with severity.
In handling criminal cases of bribery according to this opinion, we should accurately distinguish crime from non-crime, this crime from that crime, punish the minority and educate the majority according to the relevant provisions of the criminal law on bribery and the essential characteristics of the transaction of bribery rights and money. While severely punishing the crime of accepting bribes, those who have surrendered themselves and rendered meritorious service should be given a lighter, mitigated or exempted punishment according to law.