What is the crime of privately dividing a small treasury in the name of "overtime pay"
Speaking from the case of Jin Jian, former state-owned director and deputy general manager of Zhejiang Institute of Architectural Design and Research Co., Ltd.
Special Guest
Wan Yanfeng, Deputy Leader of the Discipline Inspection and Supervision Group of the Zhejiang Provincial Commission for Discipline Inspection in the Provincial Construction Department
Chen Xiao, Director of the Fifth Discipline Inspection and Supervision Office, Tongxiang Municipal Commission for Discipline Inspection, Zhejiang Province
Yao Sixia Deputy Director of the Case Trial Office of the Supervision Commission of the Discipline Inspection Commission of Tongxiang City, Zhejiang Province
Zhong Li, Instructor of the Second Procuratorial Department of the People's Procuratorate of Tongxiang City, Zhejiang Province, Senior Prosecutor of the Fourth Level
Han Weihong, the first-class judge of the Criminal Division of the People's Court of Tongxiang City, Zhejiang Province
Editor's note
This is a typical case of corruption, acceptance of bribes, and abuse of power by party members and leading cadres of state-owned enterprises.
In this case, Jin Jian personally decided to privately divide the funds kept off the books in the name of "overtime pay subsidy". Why is it that he is suspected of the crime of abuse of power by state-owned companies and enterprise personnel rather than the crime of privately dividing state-owned assets?
Jinjian established a private enterprise in partnership with others, operated the same kind of business as the provincial supervision company where it was located, and collected "dividends". Is it illegally operating the same kind of business or accepting bribes?
After the lien, Jin Jian took the initiative to confess that his acceptance of bribes and the abuse of power by state-owned companies and enterprise personnel constituted surrender. What impact does it have on his sentencing?
We specially invite the staff of relevant units to analyze.
Basic case:
Jin Jian, male, member of the Communist Party of China, was born in November 1969.
He used to be the state-owned director and deputy general manager of Zhejiang Provincial Institute of Architectural Design and Research Co., Ltd. (hereinafter referred to as the Provincial Academy of Construction Sciences) and the general manager of Zhejiang Engineering Construction Management Co., Ltd. (formerly known as Zhejiang Engineering Construction Supervision Company, hereinafter referred to as Supervision Company).
1. Corruption.
The Provincial Academy of Construction Sciences is a 70% state-owned holding company funded by the state, and the Supervision Company is a wholly-owned subsidiary of the Provincial Academy of Construction Sciences.
From January 2008 to December 2015, Jinjian used the convenience of being fully responsible for the management of the supervision company and financial approval and other duties to illegally occupy the state-owned funds of the supervision company as its own, totaling RMB 688,681.50.
2. Accept bribes.
From 2010 to 2016, Jinjian took advantage of his position to benefit others, and received a total of 485,000 yuan in bribes.
Among them, from 2010 to 2014, Jinjian provided assistance to the Ningbo branch of the supervision company in business undertaking, management fee reduction and exemption, and received many times from the heads of the Ningbo branch, Yu and Ma, as dividends from the shareholders of the Ningbo branch. A total of RMB 435,000 was sent in the name of others.
3. Personnel of state-owned company abuse their power.
Around 2006, after discussion and decision by the supervisory company’s leadership team, the supervisory company charged the project contractor the tender preparation fee and kept it off the account.
From 2012 to 2018, during his tenure as the deputy general manager of the Provincial Academy of Construction and Science and the general manager of the supervision company, Jin Jian personally decided to pay the bidding preparation fee kept off-book by the supervision company to the senior leaders of the supervision company and related participation in bid preparation by taking advantage of his position. The personnel, totaling RMB 1.835 million, caused particularly heavy losses to national interests.
Among them, Jin Jian personally got 192,000 yuan.
Investigation process:
[Initial review and investigation] On August 11, 2020, the Disciplinary Inspection and Supervision Group of Zhejiang Provincial Commission for Discipline Inspection and Construction in the Provincial Construction Department filed and reviewed Jin Jian.
On August 14, 2020, under the jurisdiction of the Zhejiang Provincial Supervisory Committee and the Jiaxing Municipal Supervisory Committee, the Tongxiang Municipal Supervisory Committee filed an investigation into Jinjian’s suspected duty crimes and took lien measures on the same day.
[Party Disciplinary Sanctions] On December 17, 2020, the Party Group of the Zhejiang Provincial Department of Housing and Urban-Rural Development gave Jin Jian a sanction of expulsion from the party.
On December 14, 2020, the Party Group of the Zhejiang Provincial Department of Housing and Urban-Rural Development no longer appoints Jin Jian as the state-owned director of the Provincial Academy of Construction Sciences, and no longer nominates him as the deputy general manager of the Provincial Academy of Construction Sciences.
On December 15, 2020, Zhejiang Engineering Construction Management Co., Ltd. terminated the labor relationship with Jinjian.
[Transfer for review and prosecution] On December 18, 2020, the Tongxiang Supervisory Committee transferred Jin Jian's suspected corruption, bribery, and state-owned company personnel abuse of power to the Tongxiang People's Procuratorate for review and prosecution.
[Initiation of Public Prosecution] On February 26, 2021, the People’s Procuratorate of Tongxiang City filed a public prosecution to the Tongxiang City People’s Court for Jinjian’s alleged corruption, bribery, and abuse of power by state-owned company personnel.
[First Instance Judgment] On September 15, 2021, the Tongxiang City People’s Court ruled that Jin Jian was guilty of corruption, bribery, abuse of power by employees of state-owned companies and enterprises, and concurrent punishment for several crimes. It was decided to carry out a fixed-term imprisonment of five years and two months. And a fine of 450,000 yuan was imposed.
The verdict is now in effect.
1. During the trial, the defender believed that Jin Jian’s criminal behavior was related to the company’s history and system. How do you view this view? How can this case promote source governance in the industry? How to do ideological and political work well in the review and investigation?
Wan Yanfeng: The Jinjian case is indeed not a case of the Provincial Academy of Construction Sciences.
In fact, since 2019, our team and the Tongxiang Municipal Commission for Discipline Inspection have successively investigated and dealt with corruption cases involving 5 managers of the Provincial Academy of Construction Sciences.
This has exposed many problems in the operation model, management system, and supervision mechanism of the Provincial Academy of Construction Sciences.
As a state-owned holding company under the Provincial Department of Construction, the company must strictly implement the relevant regulations on strengthening the supervision and management of state-owned enterprises and the honest practice of state-owned enterprise leaders. Jinjian, as a state-owned enterprise manager, is also clear about these regulations.
However, Jin Jian took advantage of the company's management loopholes to use power for personal gain and commit corruption.
Problems in company management must not be used as an excuse for personal violations of laws and crimes and evasion of punishment.
The problems exposed by the Provincial Academy of Construction Sciences are worthy of introspection and reflection in the industry system, and they have also attracted the attention of our group.
We promoted the party group stationed in the unit to carry out inspections and internal audits of the Provincial Academy of Construction Sciences, and sorted out 21 problems of various types.
In this regard, our group interviewed the main leaders of the Party Committee of the Provincial Academy of Construction Sciences, issued a disciplinary inspection and supervision proposal, requesting them to fulfill their main responsibility for strict governance of the party, and urged the Provincial Academy of Construction Sciences and its subsidiaries to conduct self-examination and self-correction immediately. Thirteen people have been punished by party discipline, 29 people have been administratively punished, and 163 people have been criticized and educated, saving a total of more than 35 million yuan in economic losses.
In particular, in response to the comprehensive strict governance of the party in the Provincial Academy of Construction Sciences, our group issued a disciplinary inspection and supervision proposal to the Party Group of the Provincial Construction Department, urging the two main leaders of the Provincial Academy of Construction Sciences to be held accountable, and they will be held accountable for their performance. The responsible person's responsibilities are ineffective, the responsibility for oversight and management, and the leadership team has been adjusted.
We also promptly summarized and analyzed the causes of the case, compiled a warning record of violations of discipline and law in the construction system, and carried out warning education in the units stationed to strengthen the deterrent effect.
In response to the existing management mechanism problems, promote the reorganization of the internal control system of the main unit, the re-standardization of business processes, in-depth search for post corruption risks, and weave a dense system cage.
Through investigation and handling of cases, we will promote governance at the source of the industry and purify the political ecology.
Chen Xiao: The clues of Jin Jian's problem were discovered in the investigation of another corruption case of another manager of the Provincial Academy of Construction Sciences.
The Discipline Inspection and Supervision Team of the Provincial Construction Department immediately coordinated and organized professional audit firms to conduct financial audits, and fixed evidence that Jinjian was suspected of embezzlement.
According to the relevant information of Jin Jian we learned earlier, the review and investigation team is not eager to discuss the case with Jin Jian. Instead, together with the comrades of the Discipline Inspection and Supervision Team of the Provincial Construction Department, they have patiently carried out ideological and political education, explained party discipline regulations and national policies, and made them Fully realize the deviation of your thinking and the mistakes of your behavior.
During the "comrade-style" conversation, Jin Jian established a trust relationship with the investigators and actively cooperated. On the basis of truthfully confessing the facts of corruption and crimes, he also explained all the bribery and abuse of power by state-owned company personnel that the supervisory agency has not yet grasped. Criminal facts.
To achieve results in ideological and political work, the key is to have comprehensive information in order to be meaningful and targeted, so that the censored subjects can truly reflect on their thoughts.
2. Jin Jian personally decides to distribute the tender preparation fees kept off-book to the senior leaders of the supervision company and related personnel involved in the tender preparation in the name of "overtime subsidy". Why is it that he is suspected of the crime of abuse of power by state-owned companies and enterprise personnel instead of privately dividing the state? Asset crime?
Yao Sixia: Jin Jian's behavior is a "private distribution", but the crime of private distribution of state-owned assets is not convicted.
The subjects of the crime of privately dividing state-owned assets are state agencies, state-owned companies, enterprises, institutions, and people’s organizations, and the objects of the crime are state-owned assets. From the analysis of the guilt of the same crime, the nature of the assets of the entities in the crime of privately dividing state-owned assets should remain roughly the same. .
“State organs, state-owned companies, enterprises, institutions, and people’s organizations” are the juxtaposed entities. The assets of state organs are purely state-owned assets. The assets of state-owned companies, enterprises, institutions, and people’s organizations should also be purely state-owned assets. Among the entities that meet the requirements of this condition, only wholly state-owned companies and enterprises.
Therefore, the supervision company in this case, as a wholly-owned subsidiary of a state-owned holding company, does not meet the main requirements of the crime of privately dividing state-owned assets.
The crime of privately dividing state-owned assets is a unit crime. According to the law, the directly responsible person in charge and other directly responsible personnel who privately divide up state-owned assets are punished.
In this case, Jinjian paid out-of-account bid production fees to the senior leaders of the supervision company and related personnel involved in bid production in the name of "overtime subsidy". Unit behavior does not constitute unit crime.
The "Two Highs" "Opinions on Several Issues Concerning the Specific Application of Law in Handling of Duty Crimes in State-Funded Enterprises" Article 4, paragraph 1 stipulates that state employees in state-funded enterprises are seriously involved in the process of company, enterprise restructuring or state-owned assets disposal Anyone who is irresponsible or abuses power and causes major losses to national interests shall be convicted and punished as the crime of negligence of duties by state-owned companies or enterprise personnel, or the crime of abuse of power by state-owned companies or enterprise personnel in accordance with the provisions of Article 168 of the Criminal Law.
In this case, around 2006, the supervision company’s leadership team discussed and decided that it would charge the project contractor the bidding preparation fee and store it outside the accounts, which is a violation of the financial system, but it has not yet caused actual capital losses.
From the perspective of the source and attributes of the funds, the funds kept outside the accounts of the supervision company belong to the company's income and should be accounted for but not accounted for. Although it is a small treasury, it is essentially a state-owned asset.
In order to seek personal gain, Jin Jian privately decided to issue off-book funds in violation of regulations, causing actual losses of state-owned assets and causing particularly heavy losses to national interests. This is an act of abuse of power and constitutes a crime of abuse of power by state-owned company personnel.
3. Jinjian established a private enterprise in partnership with others, operated the same kind of business as the provincial supervision company, and collected "dividends". Is it suspected of illegally operating the same kind of business or accepting bribes?
Zhong Li: In March 2007, Jin Jian partnered with Yu Mou, Ma Mou and others to establish the Ningbo branch of the supervision company, whose business is similar to that of the supervision company, and signed a contract operation agreement with the supervision company, stipulating that the Ningbo branch has independent accounting. Be responsible for its own profits and losses, bear its own risks, and pay management fees to the provincial supervision company in accordance with the output value.
Therefore, the Ningbo branch is an independent, purely private enterprise, and the relationship between the provincial supervision company and the head office and branch is not in the sense of the company law.
The crime of illegally operating similar businesses is stipulated in the third section of the crime of disrupting the order of the socialist market economy in Chapter III of the Criminal Law, which refers to the crime of obstructing the management order of companies and enterprises. Circumstances in which a huge amount of illegal profit is obtained by operating a business of the same type as the company or enterprise for others.
What is being cracked down is the behavior of directors and managers of state-owned companies and enterprises that use their positions to facilitate their violations of banned business restrictions and seize competitive advantages. The premise is that there are real business behaviors.
However, as a "partner" in this case, Jinjian did not actually contribute capital and did not participate in the management of the company. His only "contribution" to the company was to use the convenience of his position to help the Ningbo branch in terms of business undertaking and management fee reduction or exemption. It does not meet the objective requirements of "operating" in the crime of illegally operating a similar business.
Look beyond the surface.
The relationship between Jinjian and Ningbo Branch is not a "operator" or a "partner". The so-called "shareholding" is only a "figure sheet" to cover up the transfer of benefits. The "dividends" it collects are essentially "realization of power". The typical private use of public equipment and the use of power for personal gain.
Jinjian partnered with others to establish a private enterprise, operated the same kind of business as the supervision company, and collected “dividends”. The legal benefit infringed was not the management order of the company or the enterprise, but the integrity of the state staff in performing their duties, which constituted a crime of accepting bribes.
With the deepening of anti-corruption, the methods of accepting bribes are constantly being renovated, and various new ways of accepting bribes are emerging one after another, but they are always changing. Accurate screening of the essence of "power-for-money transactions" is the key to identifying bribery crimes.
4. How to determine that Jin Jian constituted a surrender in the crime of accepting bribes and abuse of power by state-owned companies and enterprise personnel? What other lenient factors have been considered when sentencing him?
Han Weihong: According to the facts ascertained, after Jin Jian returned to the case, he truthfully confessed the facts of corruption crimes that the supervisory agency had known. During the lien, he voluntarily confessed the crimes of bribery and abuse of power by state-owned company personnel that the supervisory agency has not yet known.
The second paragraph of Article 67 of the Criminal Law stipulates that criminal suspects, defendants and criminals serving sentences who have been subjected to compulsory measures shall be regarded as surrendering themselves if they truthfully confess to other crimes that the judicial organs have not yet grasped.
According to Article 31 of the Supervision Law, persons under investigation who are suspected of crimes committed by duty actively cooperate with the investigation and truthfully confess illegal or criminal acts that the supervisory organ has not yet grasped can be punished with lenient punishment.
Regarding the determination of "criminal acts that have not yet been grasped by the supervisory authority," combined with the Supreme People's Court's "Opinions on Handling Specific Issues of Surrender and Meritorious Merit", it should be a different kind of crime.
The same kind of crimes and different kinds of crimes are generally distinguished by crimes.
The person under investigation truthfully confessed to the crimes of other crimes that are different from the crimes that the supervisory organ has known, but they are optional crimes or are closely related to the law and in fact, they should be recognized as the same crimes.
In this case, the supervisory authority had prior knowledge of Jinjian’s corruption problem, and after returning to the case, Jinjian took the initiative to account for the bribery of collecting “dividends” in the name of cooperative operations and the issue of illegally deciding to issue off-book funds. The crime of accepting bribes and the crime of abuse of power by state-owned company personnel that Jian voluntarily explained can be regarded as different kinds of crimes that the supervisory agency has not yet grasped.
After Jin Jian took the initiative to confess, he confessed stable until the court hearing and confessed to the facts of the crime.
The law should encourage the affirmation of Jinjian’s confession and repentance, and establish a positive social orientation.
Therefore, in accordance with the provisions of Article 67 of the Criminal Law, the first-instance judgment determined that Jin Jian constituted surrender in the crime of accepting bribes and abuse of power by state-owned company personnel.
After Jin Jian returned to the case, he truthfully confessed to the crime of corruption, which was consistent with the situation known to the supervisory organs. He actively cooperated with the investigation and made his confession stable.
Before the indictment, Jin Jian actively returned the stolen goods, signed the "Recognition of Guilt and Punishment", and voluntarily pleaded guilty and pleaded guilty.
Comprehensive consideration of Jin Jian’s criminal circumstances, attitude of guilty repentance, and circumstances of returning stolen goods, etc., shall be given a lighter punishment for the crime of corruption, and the crime of bribery and abuse of power by state-owned company personnel shall be given a lighter punishment.
Our reporter Cheng Wei