Author: Zhao Zhiyong

  【Typical Case】

  Zhang Mou, male, member of the Communist Party of China, director of an economic and technological development zone in a district of T city.

Yang Mou, female, wife of Zhang Mou, the masses.

Wang Mou, male, self-employed boss, and Yang Mou are primary school classmates.

In March 2020, at the request of Yang, Zhang provided assistance for Wang to undertake road projects in the Economic and Technological Development Zone.

In May 2020, Zhang’s family planned to buy a wedding room for their son. After Wang learned about it, he found Yang and gave him 500,000 yuan. At the same time, he expressed his gratitude to Zhang and hoped to continue to receive Zhang’s care in the future. .

Due to the shortage of funds to buy a house, Yang accepted the property.

After a period of time, Zhang asked to return 500,000 yuan after learning that Yang accepted Wang's property, but Yang never returned it.

After Zhang learned that Yang did not return the property, he did not continue to ask for it to be returned.

  【Different opinions】

  The first opinion is that after learning that Yang received 500,000 yuan from Wang, Zhang asked Yang to return the property. This behavior shows that Zhang did not intentionally accept bribes. Although the property was not returned, he should not respond to Zhang. X put forward excessive demands, so Zhang X did not constitute a crime of accepting bribes and could be given party disciplinary sanctions.

  The second opinion is that after learning that Yang received 500,000 yuan from Wang, Zhang asked Yang to return the property, but after learning that Yang did not return the property, he did not actively urge or ask Yang to return the property. , indicating that he still has the intention to accept bribes, so Zhang constitutes the crime of accepting bribes.

  【Comments and comments】

  The author agrees with the second opinion.

  In practice, in cases where a specific related person accepts the trustee's property, when state officials are investigated and dealt with, they usually "do not know about the trustee's property at first, and after learning about it, they request to return it, but he (she) does not return it". He argued that this made it difficult to determine whether state officials had intentional bribery.

The author believes that the key to determining whether a state staff member has intention to accept bribes after accepting the property from the trustee depends on whether the state staff member is aware of the behavior of accepting property and their attitude after knowing it.

  1. After learning that the property has not been returned by a specific related person, the state staff does not continue to ask for the return, but tacitly accepts and accepts the behavior of receiving property

  In 2016, the "two highs" "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery" (hereinafter referred to as the "Interpretation") stipulates in paragraph 2 of Article 16: "When a specific related person asks for or accepts other people's property, state officials know that If it is not returned or handed over later, it shall be determined that the state functionary has intention to accept bribes.” This clarifies that if the state functionary does not return or hand over the property of the requested trustee in time after learning that a specific related person has accepted the trustee’s property, but accepts it, it should be It is determined that state functionaries have intention to accept bribes.

In this case, after learning that Yang accepted 500,000 yuan from the trustee, Zhang asked Yang to return the property, but after learning that Yang did not return the property, he did not insist on returning the property, nor handed over the property. Zhang has an attitude of acquiescence and approval to accepting the trustee's property, and no longer rejects the act of accepting property in his heart.

At the same time, Zhang had a clear understanding of the nature of the property that Yang received, that is, the consideration for his own duties, so it should be determined that Zhang subjectively had intention to accept bribes.

  In addition, Article 11 of the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery" (hereinafter referred to as the "Opinions") of the "two high schools" in 2007 clarified the scope of "specially related persons", that is, close relatives with state functionaries , mistresses (husbands) and other persons of common interest.

The author believes that the nature of the relationship between state functionaries and their close relatives, mistresses (husbands) and other people with common interests should be a community of economic interests, with a relationship of "one loss and one loss" and "one prosperity and prosperity", such as common property related persons, joint investment people, partners, etc.

In this case, Zhang and Yang belonged to a community of interests. After learning that Yang did not return the property, Zhang did not continue to ask for it to be returned. At this time, the property received by Yang had an interest relationship with Zhang.

In fact, there is no essential difference between Yang's acceptance of the trustee's property and Zhang's acceptance of the trustee's property, and Zhang should be held responsible for the illegal consequences of receiving the property.

  2. After the state staff is aware of the received property, they expressly request to return the property, but a specific related person or a trustee falsely claims that the property has been returned

  At this time, to determine whether the state staff has intention to accept bribes, it should be determined based on the comprehensive or overall behavior of the state staff after learning that the specific related person has accepted the trustee's property, such as whether he is firmly opposed to accepting the property and strongly requests the specific relationship. return property; whether there are repeated and uninterrupted urges, reminders, and inquiries about the return of property; whether there are conditions for returning or handing over the property; whether I have the possibility to return or hand over the property in person; Contact the trustee, express the intention of refund or have refund behavior.

There is evidence to prove that the state functionaries did have the above-mentioned behavior and actively asked for the return of the property, but if a specific related person or a trustee deceived that the property had been returned, and it was sufficient to convince the state officials, it is not appropriate to determine that the state officials had the intention to accept bribes.

  3. After the state staff knew about the property they received, they did not return or hand in the property in time, and then returned the property for reasons such as evading investigation.

  The second paragraph of Article 9 of the "Opinions" stipulates: "After a state functionary accepts bribes, he or she is investigated and punished because of himself or someone or something related to his bribery, and if he returns or turns it over to cover up the crime, it will not affect the determination of the crime of accepting bribes." If the staff member learns that a specific related person accepts the property of the trustee, but fails to return or hand over the property in time, it shall be determined that the state staff member has the intention of accepting bribes.

If the property is returned in order to cover up the crime and evade investigation, it is the return of the stolen property after the bribery crime is completed, which does not affect the determination of the bribery crime and can only be considered as the circumstances of the sentencing.

  The author believes that Article 9 of the "Opinions" stipulates that "because oneself or a person or thing related to his bribery is investigated and punished, in order to cover up the crime" as the reason for returning or handing over the stipulation, it is a stipulation of attention. The crime of accepting bribes will not be affected if the property is returned or handed over for reasons such as failing to get things done; fearful and unable to sleep at night; receiving warning education and being deeply alerted; being deterred by discipline and law and inspired by policies; family accidents and other reasons identification.

  4. State functionaries were unaware of the property they received from the beginning, or returned or handed over the property in a timely manner after learning about it

  If a specific related person did not inform the state staff after receiving the property, and there is evidence to prove that the state staff did not know about it from the beginning, because the state staff subjectively had no knowledge of accepting the property and had no intention of accepting bribes, they could not be charged with the crime of accepting bribes. pursue their criminal responsibility.

However, if a state staff member knows that a specific related person has accepted the trustee's property, and returns or surrenders it in a timely manner, it shows that the state staff member has a fundamentally negative or opposed attitude to the act of accepting property, and of course there is no intention to accept bribes subjectively.

  It should be noted that the above-mentioned state staff did not know about the receipt of property from the beginning, returned or handed over the property in a timely manner after knowing it, or was deceived and returned it with sufficient confidence, due to the lack of communication between the specific related person and the state staff on the intention of accepting bribes, cannot be considered a crime of bribery.

If a specific related person seeks illegitimate benefits for the trustee through the behavior of state functionaries, it may constitute the crime of using influence to accept bribes.

Only in the case of "state staff returning or handing over in time", it can be considered in the sentencing of specific related persons.

  (Author: Tianjin Municipal Commission for Discipline Inspection and Supervision)

Keywords: