Still under investigation after 11 years of resignation
Speaking from the bribery case of He Conghua, former director of the Housing and Real Estate Division of Zhejiang Provincial Construction Department
Editor's note
Eleven years after he resigned and went to the sea, He Conghua was filed for review and investigation, which once again proved the truth that "if you do not reach out, you will be caught." Why was He Conghua filed for investigation in this case? How does it link up with the party group to make party discipline sanctions? How to characterize He Conghua's behavior of receiving 1 million yuan in "settling-in allowance" after resigning from public office and taking a position in a company directly related to his original work? Why did He Conghua and his defenders not support the issue of confession and punishment? Why is the original sentence still maintained after the circumstances of surrender identified in the first instance are corrected? We invite the staff of relevant units to answer these questions.
Special Guest
Xu Huiming Member of the Judicial Committee of Jiaxing Intermediate People's Court
Shen Dan, Member of the Standing Committee of the Disciplinary Committee of Tongxiang City, Member of the Municipal Supervision Committee
Cao Yin Member of the Supervision Committee of Tongxiang City
Chen Bin, Executive Deputy Procurator of Tongxiang City People's Procuratorate
Basic case:
He Conghua, male, born in 1962. Since July 2002, he has served as the director of the Housing and Real Estate Division of Zhejiang Provincial Construction Department, responsible for the management of the province's housing and real estate industry. Resigned from public office in November 2008. In January 2009, he served as the project leader of a real estate group in the original jurisdiction. In May 2012, he served as the executive president of the group. In 2015, he served as the president of another real estate group in the original jurisdiction.
From 2004 to 2008, He Conghua took advantage of his position as the director of the Housing and Real Estate Division of the Zhejiang Provincial Department of Construction, and successively illegally accepted properties from Wu and Jin in the form of "buying a house at a low price," "relocation allowance," and "debt relief". , With a total value of RMB 2.963803 million, and seek benefits for others in corporate development, policy consultation, qualification review, conflict resolution, and award review.
On June 14, 2019, He Conghua was appointed by the Zhejiang Provincial Supervisory Committee to be under the jurisdiction of the Jiaxing Supervisory Committee for suspected duty crime, and the Tongxiang Supervisory Committee filed an investigation on him. He Conghua truthfully confessed his main criminal facts during the investigation by the Supervisory Committee and the review and prosecution by the procuratorial organ, and signed a confession of guilt and punishment during the review and prosecution stage. At the trial stage of the court of first instance, because the court believed that the public prosecution agency's sentencing recommendations were too light, it wrote to the public prosecution agency to recommend adjustments to the sentencing recommendations before the hearing, and then the public prosecution agency adjusted the sentencing recommendations. He Conghua did not accept the adjusted sentencing proposal, and the court of first instance did not apply the plea of guilt to make a judgment. After the judgment of the first instance, He Conghua had objections to the determination of bribery facts and the application of the guilty plea procedure and appealed. On May 18, 2020, the Jiaxing Intermediate People's Court ruled to reject the appeal and uphold the original judgment.
Investigation process:
[Case registration, review and investigation] On June 14, 2019, the Tongxiang Municipal Supervisory Committee filed an investigation on He Conghua and took lien measures on him on June 16. On July 8th of the same year, the Disciplinary Inspection and Supervision Group of Zhejiang Provincial Commission for Discipline Inspection in the Provincial Construction Department filed and reviewed the case.
[Transfer for review and prosecution] On August 24, 2019, He Conghua was expelled from the party group of the Zhejiang Provincial Construction Department. On August 29, the Tongxiang Supervisory Committee transferred He Conghua's suspected bribery case to the Tongxiang People's Procuratorate for review and prosecution.
[Public prosecution] On October 29, 2019, the Tongxiang City People’s Procuratorate filed a public prosecution with the Tongxiang City People’s Court against He Conghua’s suspected bribery case.
[First-instance judgment] On January 22, 2020, the Tongxiang City People’s Court made a first-instance judgment. Defendant He Conghua was guilty of accepting bribes and sentenced to seven years and six months in prison and a fine of 600,000 yuan. The illegal income in the case of 2.963803 million was returned, confiscated and turned over to the state treasury.
He Conghua refused to accept the judgment of the first instance and filed an appeal.
[Second Instance Judgment] On May 18, 2020, the Jiaxing Intermediate People's Court ruled to reject the appeal and uphold the original judgment.
1. After 11 years of resigning from public office, why did the supervisory authorities file an investigation on He Conghua? How does the party disciplinary sanctions related to the party group they belong to?
Cao Yin: In April 2019, in the process of investigating other cases, the Zhejiang Provincial Supervision Commission discovered from relevant real estate companies that He Conghua bought a house at a low price during his tenure as Director of the Housing and Real Estate Division of Zhejiang Provincial Construction Department in April 2008. As a result, the inspection was carried out and the Jiaxing Supervisory Committee was appointed in June. After the Jiaxing Supervisory Committee, the Tongxiang Supervisory Committee filed an investigation on He Conghua. At this time, 11 years have passed since He Conghua resigned from public office in November 2008. Article 18, paragraph 2, of the "Interim Provisions on Administrative Sanctions for Public Officials" stipulates that “a public official who has violated the law and should be sanctioned by the government has resigned from his public office or died before the supervisory authority makes a sanction decision, no sanctions will be given, but the supervision Organs may file a case for investigation.” According to the third paragraph of Article 11 of the Supervision Law, public officials who violate the law shall be subject to administrative sanctions in accordance with the law. For suspected crimes committed by duty, the investigation results shall be transferred to the People’s Procuratorate for review and prosecution. According to this, resignation does not mean a "safe landing." Cadres can resign, but there is no pause button for anti-corruption, and no rest. He Conghua accepted bribes totaling more than 2.96 million yuan, a huge amount. According to law, he should be sentenced to more than three years but not more than ten years in prison. According to the Criminal Law, the prosecution period is fifteen years. The last time He Conghua accepted bribes was January 2010. When the case was filed against He Conghua in June 2019, he was still in the period of prosecution, and he should be investigated for criminal responsibility for suspected duty crimes.
He Conghua joined the Communist Party of China in July 1992, and after resigning from public office in November 2008, he still violated the rules and worked in a company directly related to his original work and business, and his behavior has violated the integrity and discipline. In addition, He Conghua used his position to facilitate the acceptance of other people's property and profit for others. His behavior violated national laws and regulations and was suspected of taking bribes. He Conghua's above behavior has seriously violated party discipline and should be punished by party discipline. The Tongxiang Municipal Supervisory Committee will simultaneously feed back the findings of the investigation to He Conghua’s party organization. The Zhejiang Provincial Construction Department’s party group will discuss and decide on the party disciplinary sanctions against He Conghua, and on August 24, 2019, he will be expelled from the party. On August 29 of the same year, the Tongxiang Supervisory Committee transferred He Conghua's suspected crime to the procuratorial organ for review and prosecution, which effectively realized the integration of discipline and law and the convergence of law and law.
2. After He Conghua resigned from public office, he received 1 million yuan in "settling-in allowance" and worked in a company directly related to his original work and business. How does he view the nature of the above behavior?
Shen Dan: He Conghua's two independent acts of receiving the "settling-in allowance" and working in a company directly related to his original job after resignation should be evaluated separately. Regarding the determination of the nature of "settling-in allowance". In the second half of 2008, Wu invited He Conghua to resign to his real estate group. After the two parties negotiated salary, commission, car allocation and other benefits, they also promised an additional 1 million yuan "settling-in allowance" for He Conghua. He Conghua in January 2010 Receive the full payment on the 5th. Settlement allowance is a welfare policy, which is a certain amount of family living allowance provided by enterprises to retain specific talents. However, in this case, He Conghua received a lump-sum payment of 1 million yuan, a huge amount, far exceeding his annual salary of about 120,000 yuan during his public office, and even higher than his annual salary of about 800,000 yuan after taking office in the enterprise. He Conghua’s professional capabilities and the benefits that resources can bring to the company have been given feedback by agreeing on a 1% business commission. Therefore, the so-called “relocation allowance” is not a normal welfare subsidy for the introduction of talents, but why Wu worked in China During the period, the benefits paid for him were agreed with He Conghua when he was working, and he would be paid after he left. In fact, when He Conghua was the director of the Housing and Real Estate Division of the Zhejiang Provincial Construction Department, he used the convenience of his position to seek benefits for Wu's real estate group in terms of corporate development, policy consultation, and qualification review. According to Article 10 of the "Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery" of the "Two Highs", before or after taking advantage of their positions to seek benefits for the trustee, state officials agree to accept the trustee’s property after they leave their jobs , And accepted after resignation, will be treated as bribery. Therefore, He Conghua’s receipt of 1 million yuan in “settling-in allowances” should be regarded as a crime of accepting bribes.
Regarding the determination of He Conghua's resignation from public office and his employment in real estate enterprises within his original jurisdiction. Article 3 of the “Opinions on Issues Concerning the Resignation of Party and Government Leading Cadres to Engage in Business Activities” of the Central Committee of the Communist Party of China on April 8, 2004 stipulates that “within three years after the resignation of the party and government leading cadres, they shall not be subject to the areas and business scopes under the jurisdiction of their original positions. The enterprises, business institutions and social intermediary organizations within the organization shall not engage in or act as agents for business or enterprise activities directly related to the original work." He Conghua evaded the prohibition on business. In January 2009, he specifically stated that he would not hold a position when he was in charge of a real estate project in a real estate group. He did not serve as the CEO of the group until May 2012 after he believed that the three-year prohibition period had passed. 2015 He went to another real estate group in the original jurisdiction to serve as president until the incident occurred. Even if He Conghua does not hold a position in the group, he has actually engaged in business activities in the real estate enterprise in the original jurisdiction and received salary and commission. According to the provisions of Item (5), Article 77, Paragraph 1, of the 2003 Regulations on Disciplinary Actions of the Communist Party of China, his behavior is a violation of the rules of engaging in profit-making activities and a violation of the party’s integrity and discipline.
3. He Conghua and his defenders argued that the difference between the market price of the real estate appraisal and the actual price paid cannot be used to determine the amount of bribes for "buying a house at a low price". "Debt relief" is not related to duties and is not bribery. How do you view these views?
Chen Bin: Article 1 of the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery" of the "Two Highs" stipulates that "State functionaries use the convenience of their positions to seek benefits for the trustee and ask the trustee at a price significantly lower than the market. The purchase of houses, cars, and other items shall be treated as accepting bribes. The amount of bribes accepted is calculated based on the difference between the local market price at the time of the transaction and the actual price paid." In this case, He Conghua and his defenders determined the "local market price at the time of the transaction" and The public prosecution agency disagrees. Based on the price determination conclusion issued by the Zhejiang Price Certification Center, the public prosecution determined that the market price when He Conghua purchased the house in April 2008 was 3,318,740 yuan, and the actual purchase price of He Conghua was 2,054,937 yuan, which was more than 1.26 million yuan lower than the market price. The reason why He Conghua was able to purchase a real estate at a significantly lower than market price was because the real estate was developed by Wu's real estate group. He Conghua used his position to facilitate Wu during his tenure as Director of the Housing and Real Estate Division of the Zhejiang Provincial Construction Department. A real estate group seeks benefits. He Conghua’s defender argued that the prices of the other four properties sold in the same residential area during the same period were similar to He Conghua’s purchase price to defend the act of “buying a house at a low price”. But such a statement is not valid. Wu confirmed that the residential area does not have a minimum sale price for unspecified people, and the sale of houses is "one room, one price", and differences in the location, floor, and area of each suite may affect The selling price of houses is not comparable to the prices of different properties. The price determination conclusion is legal and objective, and it is corroborated by the relevant witnesses regarding the current market price of the property. Based on this, the property should be determined as the "local market price at the time of transaction" and He Conghua's behavior of "buying a house at a low price" should be determined accordingly. The amount of bribes in.
In 2004, when He Conghua was the director of the Housing and Real Estate Division of the Zhejiang Provincial Construction Department, he borrowed 700,000 yuan from Jin to invest in the purchase of real estate. Later, Jin thanked He Conghua for the help provided by his company and exempted He Conghua. 700,000 yuan in debt. Article 12 of the "Two Highs" "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery" stipulates that "property" in bribery crimes includes currency, goods, and property interests. Property benefits include material benefits that can be converted into currency, such as house renovation, debt relief, etc., and other benefits that need to be paid for currency such as membership services, travel, etc. The amount of the latter’s crimes is calculated based on the amount actually paid or should be paid. In this case, although He Conghua has a good relationship with Jin, the exemption of the huge loan of 700,000 yuan is definitely not because of "famous feelings", but because He Conghua used the convenience of his position to help Jin and her husband’s real estate company in corporate development, policy consultation, The transfer of benefits made by the qualification review and other aspects to seek benefits is inseparable from job behavior. Its essence is still a transaction of power and money. Therefore, it should be determined that He Conghua illegally accepted a bribe of RMB 700,000 in the form of "debt relief".
4. Why did He Conghua and his defenders not support the issue of confession and punishment? Why is the original sentence still maintained after the circumstances of surrender identified in the first instance are corrected?
Xu Huiming: First of all, the adaptation of guilt, responsibility and punishment is the principle adhered to in handling cases of confession and punishment. Judicial organs should consider not only embodying the lenient confession, but also the severity of their crimes and the magnitude of criminal responsibility, and propose sentencing in accordance with the law. It is recommended to accurately determine the penalty and ensure that the penalty is a crime. In this case, the original public prosecution agency proposed a sentence of four to six years imprisonment for He Conghua. The original court found that the original public prosecution agency’s sentencing recommendations were lighter after review, and wrote to the original public prosecution agency before the hearing to recommend adjustments to the sentencing recommendations. The provisions of the Criminal Procedure Law. After receiving the letter, the original public prosecution agency also considered that the original sentencing proposal was inappropriate, so it adjusted it. Since the appellant did not accept the adjusted sentencing proposal, the original prosecution agency no longer used the original confession of guilt and punishment as evidence, and the original trial ruled that the appellant did not apply the confession and punishment, and the procedures were not improper.
Secondly, a confession means that the defendant voluntarily and truthfully confessed his crime and has no objection to the alleged crime. Appellant He Conghua disagrees with whether the 700,000 yuan exempted from debts existed and whether "buying a house at a low price" and collecting "relocation allowances" constituted a crime. Therefore, He Conghua did not meet the applicable conditions for pleading guilty at the second instance of this case. The defender filed a second instance against the appellant The reason for applying a lenient sentence to plead guilty and punishing him cannot be established and is not supported.
Third, with regard to the issue of surrender, the court of first instance found that He Conghua had surrendered. The second review revealed that He Conghua was investigated by the supervisory authority for suspected bribery crimes and was taken lien. After returning to the case, he truthfully confessed his crimes and proactively confessed that the supervisory authorities had failed. The two other bribery facts in his grasp do not constitute voluntary surrenders and do not constitute surrender, and can be regarded as confession. He Conghua took bribes of more than 2.96 million yuan, which was close to the upper limit of "a huge amount". He should be sentenced to the upper limit of the range of fixed-term imprisonment of three years or more and ten years. The original judgment found that the circumstances of the appellant He Conghua's surrender was inconsistent with the facts and corrected it. Based on the principle of no additional penalty on appeal, and the original sentence was not obviously improper, the original sentence was maintained. (Our reporter Cheng Wei)