Is part of the bribe returned by a leading cadre after receiving a bribe included in the amount of the bribe?

The picture shows the case-handling personnel of the Commission for Discipline Inspection of Ordos City analyzing and discussing Jiang Huijun's case. Photo by Zhao Peng

　　Special Guest

　　Chen Peirui Deputy Director of the Case Trial Office of the Commission for Discipline Inspection of Ordos City

　　Cadre of the Eighth Discipline Inspection and Supervision Office of the Commission for Discipline Inspection of Ordos City

　　Zuo Chenguang, Secretary of the Party Leadership Group and Chief Prosecutor of the People's Procuratorate of Wushen Banner

　　Ren Zhiqiang, Chief of the Criminal Division of the People's Court of Wushen Banner

　　Editor's note

　　This is a case where a party member leading cadre returned part of the bribe after receiving a bribe. In this case, Jiang Huijun, former party secretary and director of the Chifeng Municipal Bureau of Natural Resources, accepted bribes for a long time span and the amount was "extraordinarily huge". The profit-making matters involved contracted projects, appropriation of project funds, changes in land procedures, and work transfers. How was the case discovered and what difficulties were encountered during the investigation? In the fact that Jiang Huijun was accused of accepting bribes, the defenders all argued that the money Jiang Huijun received was a "handling fee" for coordinating matters. He himself had no purpose of illegal possession and did not constitute a crime of bribery. How do you view this opinion? Jiang Huijun accepted Sun's 1.5 million yuan, but returned 1 million yuan after the incident failed. How to determine the amount of bribes? In this regard, we invite the staff of relevant units to analyze.

　　Basic case:

　　Jiang Huijun, male, born on December 7, 1962, Han nationality, postgraduate degree, joined the Communist Party of China in October 1989, and started work in June 1978. From January 2004 to June 2019, Jiang Huijun successively served as the deputy banner chief of the Keshiketeng Banner People’s Government of Chifeng City, the general manager of Chifeng Urban Investment Company, the director of the Chifeng Land Reserve Trading Center, the Secretary of the Party Group of the Chifeng Land and Resources Bureau, Director, Party Secretary and Director of the Chifeng Natural Resources Bureau. On October 22, 2019, Jiang Huijun was expelled from public office, and on February 7, 2020, he was expelled from the party. Jiang Huijun took advantage of the convenience and power of the above-mentioned position to seek benefits for 14 people including Zhang, Sun, and Yang in terms of contracting projects, appropriation of project funds, changes in land procedures, and job transfers, and received other people’s properties with a total value of RMB 7.643432 million yuan.

　　Among them, in May 2005, Sun asked Jiang Huijun, who was then the deputy head of industry in Keshiketeng Banner, to change the prospecting right of a certain uranium mine under Sun's name. After Jiang Huijun coordinated, Sun signed a contract with relevant units. "Transfer and Development Agreement." In September 2005, Jiang Huijun received RMB 1.5 million from Sun by bank transfer and cash. Because the prospecting right has not been changed under Sun's name, in November 2014, Sun requested Jiang Huijun to return 1.5 million yuan, and Jiang Huijun returned 1 million yuan to Sun.

　　Investigation process:

　　[Case registration review and investigation] On June 5, 2019, after the decision of the Ordos Municipal Commission for Discipline Inspection and the approval of the Inner Mongolia Autonomous Region Commission for Discipline Inspection, Jiang Huijun was filed for review and investigation and lien measures were taken.

　　[Transfer for review and prosecution] On September 4, 2019, Jiang Huijun was transferred to the People’s Procuratorate of Wushen Banner for review and prosecution on suspicion of taking bribes.

　　[Public prosecution] On October 25, 2019, the Wushen Banner People’s Procuratorate accused Jiang Huijun of taking bribes and filed a public prosecution with the Wushen Banner People’s Court.

　　[First-instance judgment] On May 31, 2020, the People's Court of Wushen Banner made a judgment that Jiang Huijun was guilty of accepting bribes and sentenced to 7 years in prison and a fine of 700,000 yuan. His criminal proceeds shall be confiscated according to law and turned over to the state treasury. The judgment has come into effect.

　　1. How was this case discovered? What difficulties did you encounter in the review investigation? There are many valuables in Jiang Huijun's bribery. How to determine the amount?

　　Husile: The Jiang Huijun case was reported by others. On January 18, 2017, a business woman of Hebei origin, Gou Moumou, had a housing property dispute with Jiang Huijun and sued Beijing Daxing District People's Court. Daxing District People's Court of the first instance decided that the house belonged to Gou Moumou. Jiang Huijun refused to accept the judgment of the first instance and appealed to the Second Intermediate People's Court of Beijing. The Beijing Second Intermediate People's Court revoked the first instance judgment of the Daxing District People's Court. Gou Moumou was dissatisfied with the second-instance judgment and reported to the Inner Mongolia Autonomous Region Commission for Discipline Inspection and Supervision that Jiang Huijun received huge amounts of property from others, and his family property exceeded his legal income. On January 23, 2019, the Fifth Discipline Inspection and Supervision Office of the Commission for Discipline Inspection of the Inner Mongolia Autonomous Region forwarded the clues to the issue to the Discipline Inspection and Supervision Team of the Commission for Discipline Inspection of the Inner Mongolia Autonomous Region and dispatched to the Autonomous Region Department of Natural Resources for key investigations. After preliminary verification, it was found that Jiang Huijun was suspected of serious violations of discipline and law. . Afterwards, the Commission for Discipline Inspection of the Inner Mongolia Autonomous Region assigned the jurisdiction to the Commission for Discipline Inspection of Jiang Huijun to handle the suspected serious violation of laws and regulations.

　　During the investigation and handling of Jiang Huijun's case, we encountered the following difficulties: First, the time span of the case was large, the amount involved was large, some violations of discipline and law occurred early, and it was difficult to obtain documentary evidence; second, after learning that the organization had understood and verified its problems, Jiang Huijun entered into an offensive and defensive alliance with others to conceal the proceeds of violations of discipline and law, which made it more difficult for the task force to investigate and collect evidence after the case was filed. Third, Jiang Huijun held the company’s shares in the name of his younger brother Jiang Moumou and generated income, because his methods were secret and informed There are few people, and it is difficult for the task force to investigate this issue. For these issues, the task force analyzed and judged in a timely manner, adjusted the investigation measures and strategies in a timely manner, and finally made a smooth breakthrough in the case.

　　During the investigation, we found that in the bribes Jiang Huijun received, in addition to cash, there were many valuables (total value of RMB 553,324). Accurate determination of the value of these properties is very important to the investigation of the case. To this end, the task force has done a lot of basic work. Regarding the Hermes handbags and 4 diamond jewelry received by Jiang Huijun, the task force asked the briber to identify and confirm the purchase certificate from the seller to determine its authenticity and market price. For a total of 8 items, including calligraphy works, wooden artworks, and wooden furniture received by Jiang Huijun, after being identified and confirmed by the briber, the task force entrusted the Ordos City Price Recognition Bureau to determine their market prices after on-site inspection.

　　2. In the multi-sections of alleged bribery facts, the defenders all argued that the money Jiang Huijun received was a "handling fee" and that he had no purpose of illegal possession and did not constitute a crime of bribery. How do you view this opinion?

　　Chen Peirui: We believe that this claim cannot be established. Jiang Huijun's behavior constitutes the crime of accepting bribes. The main reasons are as follows:

　　First of all, in the facts of accepting bribes in this case, Jiang Huijun’s behavior was as follows: after accepting money from others, he used the convenience of his position to implement a small number of behaviors to seek benefits for others; or he merely promised to seek benefits for others without actually implementing it; or Asking the trustee for money in the name of spending money in the process of seeking benefits for others, and it is verified that the so-called expenses are not incurred by him, and the amount is not the amount received or requested by him; or using his money after receiving money from others The superior leadership’s position dominance implements the act of seeking benefits for others. Therefore, the defender's claim that "the money Jiang Huijun received was a'handling fee', used to coordinate matters", was inconsistent with the facts.

　　Secondly, in response to the defender’s claim that Jiang Huijun received the money for coordination, indicating that he had no purpose of illegal possession, and thus did not constitute the crime of accepting bribes, we believe that the following considerations should be taken: the legal benefit of the protection of the crime of accepting bribes is the behavior of state officials. According to Article 385 of the Criminal Law, "Two Highs" "Opinions on Several Issues concerning the Application of Law in Handling Criminal Cases of Bribery", "Two Highs" "Interpretations on Several Issues of Application of Law in Handling Criminal Cases of Corruption and Bribery" "A state official accepts or solicits property from others, promises to seek benefits for others, has begun to perform behaviors that seek benefits for others, and has already sought benefits or partial benefits for others, all refer to "seeking benefits for others." Then, when a state employee accepts property and promises to seek benefits for others, or is (has) performed his duties, turning his property into improper remuneration for his duties (including the promised duties), this violates the non-buyability of his duties. Sex, the crime of accepting bribes has been established, and the property they accept based on the promise, implementation, and realization of the duty to seek benefits is the amount of bribes. The "handling fees" and other expenses used to coordinate things after receiving the property are part of the behavior of seeking benefits for others or one of the specific manifestations of the behavior, and the nature of the transaction of power and money cannot be denied . Therefore, even if, as the defender claims, the money is received to coordinate things, it cannot deny the constitution of the crime of bribery.

　　3. Jiang Huijun accepted Sun's 1.5 million yuan, but returned 1 million yuan without success, how to determine the amount of bribe?

　　Zuo Chenguang: Our court believes that this 1 million yuan is also Jiang Huijun's bribes, mainly based on the following considerations:

　　First of all, Jiang Huijun has the intention to accept bribes subjectively. In the fact of the crime, Jiang Huijun received Sun’s request in May 2005 and received Sun’s 1.5 million yuan by bank transfer and cash in September 2005, and part of the money was used to purchase real estate. It was not until November 2014 that Sun's request was not completed. After Sun's multiple requests, Jiang Huijun returned 1 million yuan to Sun by borrowing from others. Through the analysis of the above facts, it is not difficult to see that when Jiang Huijun accepted Sun's entrustment and received Sun's 1.5 million yuan, he had intentionally accepted bribes.

　　Secondly, objectively, Jiang Huijun has taken advantage of his position to seek benefits for Sun. In this case, Jiang Huijun was in charge of the Deputy Banner Chief of the People’s Government of Keshiketeng Banner (in charge of industry) and was entrusted by Sun to handle matters related to uranium prospecting rights. Later Jiang Huijun used his status as the Deputy Banner Chief in charge of industry and related units. Coordinated and helped Sun to sign the "Transfer and Development Agreement" with the relevant units. Therefore, Jiang Huijun has used his position to facilitate the implementation of the behavior for Sun’s benefit, but he did not complete Sun’s request for other reasons. .

　　Third, Jiang Huijun’s fact of accepting bribes in this section does not apply to the provisions of Article 9 Paragraph 1 of the "Two Highs" "Opinions on Several Issues concerning the Application of Law in Handling Criminal Cases of Bribery" (hereinafter referred to as the "Opinions"). This paragraph stipulates: “The state functionary does not accept bribes if he accepts the property from the trustee to return or hand in in a timely manner.” Based on the above provisions, some people in practice believe that accepting others’ properties as long as they are returned before the case cannot be regarded as bribery. We believe that "timely" here is not a pure time concept, but to show that the perpetrator did not intentionally accept bribes. Only when the perpetrator returns or hand in the property without the intention of accepting bribes is not accepting bribes. In this case, as mentioned earlier, when Jiang Huijun accepted Sun’s property, he had a clear intention to accept bribes. Later, Sun asked for a bribe from him because the matter was not completed, and then he partially returned it; The time span for bribery withdrawal is as long as nine years. Therefore, the facts in this section cannot apply the provisions of Article 9(1) of the "Opinions".

　　To sum up, Jiang Huijun accepted Sun's request for profit in May 2005, and received Sun's 1.5 million yuan in September 2005. The bribery has been completed so far, and in November 2014 he returned 100 at Sun's request. Ten thousand yuan does not affect the composition of the crime, and can only be considered as the circumstances of the crime.

　　4. After Jiang Huijun called the case-handling personnel, he went to the supervisory committee to accept the interview and truthfully confessed the suspected bribery crime. Does it constitute surrender? What factors are considered when sentencing?

　　Ren Zhiqiang: Surrendering is an important statutory circumstance that affects sentencing. It is determined that surrendering requires both statutory requirements of automatic surrender and truthful statement. In handling the bribery case of Jiang Huijun, it was determined that he had surrendered, and the main reasons were as follows:

　　First examine whether the defendant has the automatic nature of coming to justice. According to the relevant provisions of the "Supreme People's Court Interpretation on Several Issues Concerning the Specific Application of Laws for Self-surrender and Meritorious Service", the key to determining surrender is whether the defendant is an automatic surrender and whether he truthfully confessed the main criminal facts after the surrender. The key to judging whether the perpetrator automatically surrenders is whether the surrender is based on the perpetrator's will. There are many motives for surrenders, but as long as they have personal freedom and put themselves under the control of the case-handling agency for reasons other than contrary to their original intentions, they should be deemed to have automatic surrender. In this case, the investigator of the Ordos City Supervisory Committee called Jiang Huijun and asked him to go to Hohhot to accept the conversation. The next day Jiang Huijun took a flight from Beijing to Hohhot. In this case, after Jiang Huijun received the call notification, he could either choose to take the initiative to return to the case or escape, and he could go to the case handling agency in time, reflecting the initiative and voluntariness of the case. Secondly, after Jiang Huijun took the initiative to return to the case, he not only truthfully confessed the criminal facts that the supervisory committee had, but also took the initiative to confess a large number of criminal facts that the supervisory committee had not yet mastered. In summary, it should be determined that Jiang Huijun has a plot to surrender.

　　In trial practice, we comprehensively judge the facts, nature, circumstances of the perpetrator’s crime, and the degree of harm to society, combined with the motivation, stage, and objective environment of the automatic surrender, and account for the completeness and stability of the crime facts and the performance of repentance. Determine the range of sentencing according to law. Regarding this case specifically, in addition to surrendering himself, Jiang Huijun expressed at the trial stage that he voluntarily pleaded guilty and pleaded guilty, and was willing to use his property to cover the money involved in the case. The disciplinary inspection and supervision agency proposed a lenient punishment, and the public prosecution agency also found that he had surrendered, so he was given a reduced punishment based on the above factors when sentencing. (Our reporter Liu Yilin)