The offender's crime
Starting from the case of the party secretary and director Xu Cheng of the original planning bureau of Quzhou City, Zhejiang Province, and the bribery case
Editor's note
This is a case in which a party member leading cadre and a specific related person (mistress) jointly accepted a bribe. In this case, Xu Cheng, secretary of the party committee and director of the original planning bureau of Quzhou City, said that the specific amount of bribery for a certain related person, Xu Juan, is unclear. Does this affect the determination of his joint bribery with Xu Juan? Xu Cheng’s defense lawyer claimed that the joint bribery money was collected and used by Xu Juan, and Xu Cheng’s subjective viciousness was relatively small; Xu Juan’s defense lawyer claimed that Xu Juan was neither a party member nor a national public official, and was an accomplice. How to determine this? We invite the staff of relevant units for analysis.
Special Guest
Zhu Mingfei, Director of the Investigation Office of the Sixth Review of the Quzhou Discipline Inspection Commission
Yao Chengjia Prosecutor of the Post of the People's Procuratorate of Qujiang District, Quzhou City
Zhao Huiping, Member of the Party Committee and Vice President of the People's Court of Quzhou District, Quzhou City
Basic case:
Xu Cheng, male, Han nationality, joined the work in December 1991, joined the Communist Party of China in February 2000, and served as the director of the Planning Management Department of Quzhou Planning Bureau from 2005 to December 2018, the director of the South Branch of Quzhou Planning Bureau, Quzhou Party committee member and deputy director of Municipal Construction Bureau, Party committee member and deputy director of Quzhou Housing and Urban-Rural Construction Bureau, party committee member and deputy director of Quzhou Planning Bureau, member, deputy director (and) of Quzhou West District Management Committee Party Working Committee and Quzhou Secretary of the Party Committee and Director of the Municipal Planning Bureau.
The court heard that Xu Cheng took advantage of his duties from 2005 to December 2018 to receive the property sent by the unit and the individual alone or together with his special relationship Xu Juan, which is equivalent to RMB5047372, of which Xu Cheng is separate Receiving the equivalent of RMB 1831838, Xu Cheng and Xu Juan jointly received the equivalent of RMB 3215534.
Investigation process:
[Initial review investigation] On December 28, 2018, Xu Juan was retained by the Qujiang District Supervisory Commission for allegedly using influence to accept bribes. On January 8, 2019, Xu Cheng was subject to disciplinary review and supervisory investigation for alleged violations of discipline and law, and was taken into custody.
[Transfer Review and Prosecution] On April 17, 2019, the Qujiang District Supervision Committee transferred Xu Juan’s suspected bribery case to the Qujiang District People’s Procuratorate for review and prosecution. On June 4, 2019, the Quzhou Municipal Supervision Committee transferred Xu Cheng's case of suspected bribery to the Quzhou Municipal People's Procuratorate for review and prosecution. The Quzhou People's Procuratorate designated the jurisdiction and the Quzhou District People's Procuratorate reviewed and prosecuted. The People's Procuratorate of Qujiang District handled both cases.
[Initiation of Public Prosecution] On August 20, 2019, the People's Procuratorate of Quzhou District of Quzhou City filed a public prosecution against the people's court of Quzhou District of Quzhou City on charges of bribery of Xu Cheng and Xu Juan.
[Court Judgment] On May 11, 2020, the People's Court of Qujiang District made a judgment that Xu Cheng committed a bribery sentence and sentenced him to 8 years in prison with a fine of RMB 550,000; Xu Juan committed bribery and sentenced him to 6 years in prison , And fined 500,000 yuan. Xu Cheng and Xu Juan pleaded guilty and pleaded guilty.
1. What are the characteristics of the Xu Cheng case? What are the difficulties in handling cases?
Zhu Mingfei: The biggest feature of Xu Cheng's case is that he took bribes together with Xu Juan, a specific person in his relationship. The improper relationship between Xu Cheng and Xu Juan is an open secret in a small area, and the bribes around him who want to "hunt" them all know Xu Juan's influence on Xu Cheng and regard Xu Cheng and Xu Juan as A community, "curve research" for Xu Juan is the most effective way to attract and corrode Xu Cheng. The bribe givers introduced "experience" to each other and said that if they want to do business with Xu Cheng, they must first "take down Sister Juan". For example, Xu Cheng has been able to adhere to the principle in the early stage when dealing with the violation of the planning, design and construction of Zhongliangfang. However, after learning that Xu Juan accepted the bribe, the principle was completely lost, and even forced his subordinates to accept the nuclear test through planning. Among the facts of accepting bribes in this case, Xu Juan was talking and collecting money in front of the platform, and Xu Cheng was working in the background.
It is worth mentioning that on December 28, 2016, the letter and visit room of the Discipline Inspection Commission of Quzhou City requested Xu Cheng to truthfully explain to the organization whether there was a violation of life discipline by means of a notice of discipline inspection and supervision. However, Xu Cheng gave up the opportunity to truthfully explain the problem to the organization and chose to hide the organization. In his reply on January 9, 2017, he denied that he had a violation of life discipline.
The biggest difficulty in handling this case is the difficulty of review and breakthrough. On the one hand, the fact that Xu Cheng accepts more bribes is through Xu Juan in accepting bribes. The bribe giver and Xu Cheng have no direct contact in terms of petitions or conveying benefits, so the confession of the bribe payer is not close enough in direct direction. On the other hand, Xu Cheng and Xu Juan made some preparations after the main bribers were investigated, and took measures to counter the investigation, such as transferring stolen money, destroying the involved items, looking for others to give confessions, single-line contact with mobile phones, and let Xu Juan take shelter from the field. First class. Finally, Xu Cheng and Xu Juan have maintained a relationship of love and marriage for nearly 10 years. Although the two parties are essentially a relationship of interest, they are also mixed with some emotional factors and have the instinct to protect each other.
In response, the review investigation team carefully designed the review talk plan. One is to arouse the original intention and make an in-depth analysis of Xu Cheng's character and experience. He believes that although he has a corrupt and depraved side, he also has another side of active work and a kinder nature. He recalls his step-by-step growth in the conversation. To affirm his efforts, gradually arouse his original intention, let him deeply realize that he has failed the organization's cultivation for many years, and believe that the organization depends on the organization after making mistakes. The second is to regain their ethical and moral sense. Xu Cheng and Xu Juan each have a family. During the relationship between the two couples, they ignored the care of the family. After the investigation, the family members were hit hard. Juan Cheng’s sick mother, Xu Cheng’s child in college, as Xu Cheng said in a letter to his children, he was absent when his child needed the most advice in his life, and he deeply regretted it. The third is to analyze the consequences of responsibility. There are differences in the size of responsibility in joint crimes. Through interpretation and examples, gradually divide and disintegrate Xu Cheng and Xu Juan’s offensive and defensive alliances, prompting the two to truthfully explain their respective roles in the crime of bribery.
2. How to distinguish between Xu Cheng's individual bribery amount and Xu Juan's common bribery amount in determining the amount of bribes?
Yao Chengjia: The main subject of the crime of bribery is state staff, but it does not mean that only state staff can establish a crime of bribery. According to Article 7 of the Supreme People's Court and the Supreme People's Procuratorate's Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery (Fa Fa [2007] No. 22), certain related parties conspired with state personnel to jointly commit bribery. With regard to the amount of bribes, certain related parties shall bear the common responsibility for accepting bribes; if the specified related parties do not participate, it shall be determined that the State staff member has accepted the bribe alone. Specific to this case, the following aspects should be considered.
First, is there any conspiracy between Xu Juan and Xu Cheng? Conspiracy is actually the intention of the two parties to communicate, and it does not only include prior collusion. Conspiracy in the event is also conspiracy. Conspiracy is not only expressed as an explicit way to negotiate and reach consensus, but a tacit way can also become The form of conspiracy. In this case, Xu Juan's establishment of the bribery crime must rely on the establishment of Xu Cheng's bribery crime, so the conspiracy here is actually manifested in Xu Cheng's knowledge of Xu Juan's acceptance of the bribe's property, that is, Xu Cheng's knowledge Under the circumstances, the convenience of the post is also used for the benefit of others, which naturally constitutes a crime of bribery. Judging from the evidence in this case, some Xu Cheng participated in the negotiation process between Xu Juan and the briber to discuss the benefits, some handled the money that the bribe gave to Xu Juan, and some Xu Juan informed Xu Cheng when Xu Cheng came forward to help Some Xu Juan informed Xu Cheng after receiving the property. Therefore, it can be determined that Xu Cheng is informed. The criminal fact that Xu Juan came forward to accept bribes should be determined as the amount of bribes received by Xu Cheng and Xu Juan.
Second, regarding the level of knowing, because the crime of accepting bribes is a crime of the purpose of illegal possession, for this type of crime, it is required to know clearly about the possession of the property, that is, Xu Cheng does not actually possess the property, then whether he has possession Do you want Xu Cheng to know how much Xu Juan actually received? We believe that there are specific intentions and general intentions deliberately. Xu Cheng only needs to know that Xu Juan has received the benefit fee of the bribe giver for a specific request. Included, as long as he did not raise objections, then these are all things he can accept or acquiesce in. As for Xu Cheng’s failure to use the bribes received by Xu Juan, because joint crimes have different divisions of labor, they and Xu Juan are a whole, and the two parties have a common behavior (Xu Cheng uses his convenience to benefit others, Xu Juan receives property ) The crime was completed. The question of who owns the money and who uses it in the end is stolen. It does not affect the qualitative nature. Both parties are responsible for the total amount of bribes received by the two. Therefore, the fact that Xu Juan came forward to accept bribes should be found to have committed a crime with Xu Cheng.
Third, with regard to the defendant Xu Juan’s defender’s claim, the amount received by the defendant Xu Cheng from the trustee Wu in the name of Xu Juan’s salary should not be included in Xu Juan’s defense opinion. We believe that, based on the evidence in the case, Wu Moumou gave the money based on the salary name agreed in advance with Xu Cheng and Xu Juan, and Xu Cheng also handed over the money to Xu Juan afterwards, which was used by Xu Juan. Whether Xu Juan collects it or Xu Cheng does not affect the determination that Xu Cheng and Xu Juan jointly accept bribes.
3. Xu Juan and his defenders pointed out that Xu Cheng is a public official of the state, and Xu Juan is neither a party member nor a public official of the state. Therefore, Xu Juan should be an accomplice in joint crimes. How to determine the principal and accessory in this case?
Huiping Zhao: The Supreme People’s Court and the Supreme People’s Procuratorate’s “Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery” stipulate that if a specific related person conspires with a national staff member to jointly commit bribery, the specific related person shall be punished as an accomplice of the crime of bribery. . At the same time, the opinion stipulates the scope of specific related persons and refers to persons who have close relatives, mistresses (husbands) and other common interests with state staff. The defendant Xu Cheng and the defendant Xu Juan have maintained a stable relationship between husband and wife since 2009. The two often enter and leave the public place in pairs. Xu Cheng asked the trustee to rent a house for Xu Juan to live in. The petitioners involved in this case knew that Xu Juan was Xu Cheng's mistress. Xu Juan received the trustee’s property and conveyed to Xu Cheng the request of the trustee, and with Xu Cheng’s consent, Xu Juan actually possessed the property. Xu Cheng’s use of his position to facilitate the requestor’s profit should be regarded as a conspiracy. Xu Juan was dealt with as an accomplice of bribery.
The object infringed on the crime of bribery is the integrity of the duties of the national staff. In the joint crime of this case, Xu Cheng used his position to conduct a transaction of power and money with the trustee, and played a major role as the principal offender. Although Xu Juan plays an active role in the specific process of receiving property and possesses all the property jointly bribed, he does not have the status of a national staff member. Xu Juan’s behavior of receiving property depends on Xu Cheng’s identity and authority. Cheng Cheng’s status as a national staff member can benefit him, and Xu Juan’s mistress only sent property to Xu Juanxing. Compared with Xu Cheng, Xu Juan plays a secondary role in the joint bribery crime and is an accessory.
4. When the conviction and sentencing were considered by the court, what mitigating circumstances were considered?
Huiping Zhao: "Amendment to the Criminal Law of the People's Republic of China (9)" made significant adjustments to the conviction and sentencing of corruption and bribery crimes, abolished the specific amount standards for the convictions and sentencing of corruption, bribery, and highlighting other circumstances beyond the amount in conviction and sentencing The role. In this context, the Supreme People’s Court and the Supreme People’s Procuratorate issued the “Interpretation of Several Issues Concerning the Applicable Laws in Handling Criminal Cases of Corruption and Bribery” in 2016 (hereinafter referred to as the “Interpretation”) to clarify and refine the criteria for determining corruption and bribery crimes , Follow the legislative idea of "amount + plot", combined with the crime plot to further open up the difference in the amount of different sentencing grades, in order to meet the sentencing needs of crimes of different plots, as far as possible to achieve a balance between crime and punishment.
When we convicted and sentencing in this case, we used the amount plus plot sentencing model. Xu Cheng received bribes of more than RMB 5.04 million, of which RMB 1.83 million was bribed alone and RMB 3.21 million was jointly bribed. According to the provisions of the Interpretation, if the amount of corruption or bribery is more than 3 million yuan, it should be regarded as the 380th Criminal Law The "specially large amount" specified in the first paragraph of Article 3 shall be sentenced to fixed-term imprisonment of more than ten years, life imprisonment or capital punishment, and a fine or confiscation of property. On the basis of determining the level of sentencing based on the amount of crime, considering Xu Cheng has a meritorious plot to report the crime of others and has been verified to be true, and truthfully confessed part of the bribery facts in this case that the supervisory authority has not grasped during the period of detention, refunding all illegal gains, pleading guilty, The punishment was reduced according to law, and Xu Cheng was sentenced to 8 years in prison with a fine of RMB 550,000.
Regarding the sentencing of a certain related person Xu Juan. First of all, according to the above "Interpretation", the amount of bribes participated by Xu Juan in this case is more than 3.21 million yuan, and the coefficient is particularly huge. It can be determined that the base sentence is fixed-term imprisonment of more than ten years and fines. Secondly, Xu Juan is an accomplice and should be given a lighter punishment in accordance with the law. Xu Juan also truthfully confessed part of the case of bribery in the case that the supervisory authority had not grasped during the detention period. After the case was returned, all the illegal gains were withdrawn. Juan will reduce the punishment. At the same time, he also considered the balance of sentencing with Xu Cheng, and finally sentenced Xu Juan to 6 years in prison with a fine of RMB 500,000. (Reporter Yin Jian)