Notice of the Supreme People's Procuratorate Municipality on Issuing the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery

Fa Zheng Fa [2007] No.22

Higher People's Courts and People's Procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, Military Courts and Procuratorates of the People's Liberation Army, Production and Construction Corps Branch of Higher People's Court of Xinjiang Uygur Autonomous Region, and People's Procuratorate of Xinjiang Production and Construction Corps:

The opinions of the Supreme People's Court and the Supreme People's Procuratorate on several issues concerning the application of laws in handling bribery criminal cases are hereby printed and distributed to you, please implement them conscientiously.

Press release issued on 8 July 2007

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 the dividends distributed will be treated as the fruits of bribery. 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.