Whether buying a house at a "preferential price" constitutes bribery
From the Case of Jia Donglai, Former Inspector of Civil Air Defense Office of Changchun City, Jilin Province
Our reporter Fang Yifei
Special Guest
Wang Kai Deputy Director of the Fourteenth Inspection and Investigation Office of Changchun Municipal Commission for Discipline Inspection and Supervision
Hui Jiaxin, a cadre of the case trial room of the Changchun Discipline Inspection and Supervision Committee
Liang XueChangchun City People's Procuratorate Post Prosecutor
Yang Haijiao Judge of the Second Criminal Division of Changchun Intermediate People's Court
editor's note
This is a typical case of party members and leading cadres taking advantage of their positions to seek benefits for others, and accepting bribes by buying houses at a price significantly lower than the market and finally being investigated and dealt with.
In this case, Jia Donglai mainly took advantage of his position as the deputy director of the Civil Air Defense Office to engage in power-money transactions, which exposed the weak links in the local civil air defense system?
How to deepen and solidify the case of Jia Donglai to promote reform?
Why did Jia Donglai buy real estate at "group-buying prices" and "preferential prices" as a bribe for buying houses at a price significantly lower than the market?
The defender proposed that Jia Donglai "borrowed" Geng's vehicle, but the ownership of the vehicle has not been transferred, so the value of the vehicle should not be included in the amount of bribes. How do you view this defense?
We specially invite staff from relevant units to analyze.
Basic case:
Jia Donglai, male, a member of the Communist Party of China, once served as the deputy director of the Changchun Sports Committee of Jilin Province, a member of the party group and deputy director of the Changchun Civil Air Defense Office (hereinafter referred to as the "Civil Air Defense Office"), and an inspector of the Changchun Civil Air Defense Office.
Retired in March 2016.
Bribery.
From 2000 to 2016, Jia Donglai took advantage of his position as a party member, deputy director, and inspector of the Civil Air Defense Office of Changchun City to seek benefits for others in the approval of civil air defense procedures, the contracting of civil air defense projects, and the reduction or exemption of construction fees for civil air defense projects. And from 2000 to 2018, he received property from relevant units and individuals many times, equivalent to a total of more than 5.54 million yuan (the currency is the same below).
Among them, in April 2012, Jia Donglai took advantage of his position as a member of the party group and deputy director of the Civil Air Defense Office of Changchun City, and accepted the request of Wang, the person in charge of A Real Estate Company, to help the project developed by the company handle civil air defense approval matters.
Afterwards, Jia Donglai asked Wang to provide him with a house purchase discount, and finally purchased a set of commercial houses developed by the company at a "group purchase price" of more than 710,000 yuan.
After appraisal, Jia Donglai's house price was more than 1.15 million yuan lower than the market price.
In May 2012, Jia Donglai took advantage of his position and accepted the entrustment of Yu Mou, the person in charge of Real Estate Company B, to help the engineering project developed by the company handle civil air defense approval matters.
Afterwards, Jia Donglai asked Yu to provide him with a preferential price for buying a house, and finally purchased a storefront house developed by the company at a "preferential price" of more than 1.25 million yuan.
After appraisal, Jia Donglai's house price was more than 610,000 yuan lower than the market price.
Investigation process:
[Filing a case for review and investigation] On October 29, 2020, the Changchun Municipal Commission for Discipline Inspection and Supervision decided to file a case for review and investigation of Jia Donglai's suspected serious violations of discipline and law, and took detention measures against him.
On January 21, 2021, with the approval of the Jilin Provincial Supervisory Committee, the detention period for Jia Donglai was extended for 3 months.
[Transfer for review and prosecution] On April 14, 2021, after the meeting of the Standing Committee of the Changchun Municipal Commission for Discipline Inspection, the Changchun Municipal Supervisory Committee transferred the case of Jia Donglai's suspected bribery to the Changchun Municipal People's Procuratorate for review and prosecution.
[Initiation of public prosecution] On June 4, 2021, the Changchun Municipal People's Procuratorate filed a public prosecution with the Changchun Intermediate People's Court on suspicion of accepting bribes against Jia Donglai.
[Party Disciplinary Sanctions] On June 10, 2021, with the approval of the Changchun Municipal Party Committee, it was decided to give Jia Donglai the sanction of expulsion from the party, and adjust his treatment accordingly in accordance with the regulations.
[First-instance judgment] On September 29, 2022, the Changchun Intermediate People's Court sentenced Jia Donglai to 10 years and 6 months in prison for accepting bribes and fined him 500,000 yuan.
The judgment is now in effect.
1 What are the weak links in the local civil air defense system exposed by Jia Donglai and other cases? How to promote reform with cases and repair the political ecology?
Wang Kai: In 2019, the Changchun Municipal Commission for Discipline Inspection and Supervision launched a special rectification in the field of civil air defense. During this period, the four directors of the Municipal Civil Air Defense Office were investigated for serious violations of discipline and law. During the investigation, we found that Jia Donglai also had serious violations. Disciplinary violations and suspected duty-related crimes.
An important function of the Civil Air Defense Office is to approve the construction of air defense underground works for civil buildings and collect construction fees for civil air defense projects.
According to relevant laws and regulations such as the "Civil Air Defense Law of the People's Republic of China", civil buildings reaching a certain scale must be approved by the Civil Air Defense Office in the process of project approval before they can start construction.
When a civil building reaches a certain scale, an air defense basement shall be built or a civil air defense project relocation construction fee shall be paid to the state according to the corresponding scale.
Based on a comprehensive analysis of Jia Donglai and other cases, the violations of discipline and law in the civil air defense system mainly focus on the approval, acceptance, and collection and reduction of construction fees for civil air defense projects.
At the same time, since the civil air defense business involves real estate, construction and other fields, the business department has frequent contacts with real estate developers and equipment suppliers. , with strong concealment.
Hui Jiaxin: The series of corruption cases in Changchun's civil air defense system have taught us a lot of lessons, exposing a series of problems in the city's civil air defense office, such as inadequate implementation of party building responsibilities, imperfect internal control mechanisms, and lack of supervision and restrictions on the exercise of power.
The Municipal Commission for Discipline Inspection and Supervision insists on taking the case as a guide and promoting reforms based on the case, and continuously intensifies the supervision and management of key areas and key links such as civil air defense system project approval, supervision and acceptance, procurement bidding, etc., to create a clean and positive political ecology of the civil air defense system.
In response to the lack of implementation of the main responsibility for party building and the lack of party building in the Municipal Civil Defense Office, the Municipal Commission for Discipline Inspection and Supervision urged the Municipal Civil Defense Office to hold a special democratic life meeting, take the case as a lesson, carry out in-depth warning education, and learn profound lessons from a series of corruption cases. Strengthen deterrence and vigilance.
At the same time, it is clearly required that the party group of the Municipal Civil Air Defense Office implement the "two responsibilities", thoroughly investigate and rectify problems, do a good job in establishing rules and regulations, plug loopholes in a timely manner, and build a long-term anti-corruption mechanism for the civil air defense system; The Municipal Commission for Discipline Inspection and Supervision urged the Municipal Civil Air Defense Office to formulate and promulgate the "Rules of Procedure for the Party Group of the Changchun Civil Air Defense Office of the Communist Party of China" and the "Rules of Procedure for the Director's Office Meeting of the Changchun Civil Air Defense Office" to ensure that "three important ones "Big" decision-making has rules to follow, is scientific and effective; in view of the problems such as the unsound operating mechanism of civil air defense project approval power and the lack of effective supervision and control, the Municipal Commission for Discipline Inspection and Supervision urged the Municipal Civil Air Defense Office to formulate and improve the "Civil Air Defense Project (Construction) Approval System" and "Involved The "Interim Measures for the Administration of Tendering and Bidding of Secret Projects" and other systems regulate the approval and construction of civil air defense projects, the payment of relocated construction fees, and the bidding of engineering projects.
Strengthen the supervision and inspection of the problems of construction without construction, substituting construction with fees, and unpaid payments, and form post-event supervision of the approval of civil air defense projects.
2 Does Jia Donglai buy real estate at "group price" or "preferential price" constitute bribery? How to determine "significantly lower than the market price"?
Hui Jiaxin: According to Article 1 of the "Two Highs" "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery", state functionaries take advantage of their positions to seek benefits for the client and pay the client at a price that is significantly lower than the market. People who buy houses and other items shall be punished as accepting bribes.
The market prices listed in the preceding paragraph include the lowest preferential prices set in advance by commodity operators that are not aimed at specific people.
Purchasing commodities at preferential prices according to various preferential transaction conditions set in advance by commodity dealers is not considered bribery.
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.
The key point to distinguish between normal house purchase discounts and low-price house purchase bribery is whether the preferential price is the lowest preferential price set in advance by commodity operators that is not targeted at specific people.
In practice, "group purchase price" and "preferential price" are usually preferential prices that are not targeted at specific people and are set in advance by real estate developers and sellers in the form of internal decision-making before real estate sales. Practices and market rules, and are usually specified in the form of internal documents, when buyers enjoy "group purchase prices" and "preferential prices", they need to perform the approval procedures of the corresponding companies.
However, the "group purchase price" and "preferential price" in real estate transaction-type bribery are relatively arbitrary, which is manifested in the private contact between the developer and the buyer to form a "low-price purchase" agreement. Some developers hold the company's board of directors and office meetings. Special research in the form of other forms gives substantial "preferential benefits" to specific home buyers. On the surface, it fulfills the corporate decision-making process, but in essence it is to avoid investigation and punishment.
This kind of "group purchase price" and "preferential price" are exclusive and not applicable to ordinary consumers, and the price setting is contrary to market laws. should be deemed to be the market price.
Wang Kai: In this case, after making profits for real estate companies A and B, Jia Donglai voluntarily asked Wang and Yu to purchase houses, knowing that companies A and B had not made large-scale adjustments for unspecified buyers in advance. In the case of the preferential housing purchase policy, Wang and Yu are still required to give them a substantial "preferential".
The "preferential price" that Jia Donglai enjoys in buying real estate is specially approved by the developer, not open to the public and not in line with market rules, so the price he purchased the two houses cannot be recognized as the market price of the two houses.
At the same time, the above-mentioned "preferential price" was agreed by Wang and Yu on the basis that Jia Donglai had provided assistance to his production and operation, and Jia Donglai's authority might facilitate his future production and operation. Lai used the convenience of his position to help others to make profits has a causal relationship, and the "preferential price" enjoyed by Jia Donglai should be determined as the consideration for his power.
We entrusted relevant appraisal agencies to evaluate the prices of the two houses, and determined the market price based on the evaluated price, which was used as the benchmark price for calculating the price difference Jia Donglai accepted to purchase the house.
Liang Xue: In practice, some people believe that it is possible to refer to the provisions of Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (II), that is, "the transfer price cannot reach the transaction place at the time of transaction." If it is 70% of the guide price or the market transaction price, it can generally be regarded as an obviously unreasonable low price.”
We believe that this point of view confuses the scope of adjusting legal relations between criminal law and civil law, and cannot simply use 70% of the market transaction price as the determination standard.
For the consideration of "price significantly lower than the market", it is necessary to combine the absolute difference between the normal market price and the actual purchase price, the city's market environment, the location of the real estate and other factors to make a comprehensive evaluation.
In this case, the difference between the purchase price of the two real estate properties purchased by Jia Donglai from the trustee and the market price was more than 1.15 million yuan and more than 610,000 yuan respectively. The absolute amount reached a huge amount, which obviously deviated from the market price.
Taking all factors into consideration, it should be determined that Jia Donglai bought the house at a price significantly lower than the market.
3 The defender proposed that Jia Donglai "borrowed" Geng's vehicle, but the ownership of the vehicle had not been transferred, so the value of the vehicle should not be included in the amount of bribes. How do you view this defense?
Liang Xue: Transfer of ownership is not a necessary condition for accepting bribes.
According to Article 8 of the "Two Highs" "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery", state functionaries take advantage of their positions to seek benefits for the client, accepting the client's house, car and other items without changing the ownership Registration or the use of another person's name to handle ownership change registration will not affect the determination of bribery.
When making a specific determination, attention should be paid to the distinction between accepting bribes and borrowing. In addition to the confession or written agreement between the two parties, the following factors should be considered for judgment: (1) whether there is a reasonable reason for borrowing; (2) whether it is actually used; (3) (4) Whether there are conditions for repayment; (5) Whether there is an expression of intention and behavior for repayment.
Pay attention to grasp the essence, and expose the essence of bribery hidden under the legal form through the appearance of "borrowing".
In this case, in 2015, Jia Donglai took advantage of his position to help a decoration company in Changchun City undertake a construction project, a fiberglass structure project and an exterior curtain wall project.
At the beginning of 2016, Jia Donglai received a car from Geng, the legal representative of the company.
Jia Donglai's wife proved that Jia Donglai used to have a vehicle and had the financial ability to purchase it; Jia Donglai and Geng had made it clear that the car was given to Jia Donglai by Geng, and they were not arrested in order to avoid investigation and punishment. Settle the vehicle under the name of Jia Donglai.
It can be seen from this that Jia Donglai objectively does not need to borrow a vehicle, and subjectively it is clear that he is accepting rather than borrowing.
In 2019, Jia Donglai worried that he would be implicated in the investigation of related cases, so he returned the vehicle to Geng.
According to Article 9 of the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery", Jia Donglai's return of the car cannot be regarded as a timely return. It is a return to cover up a crime and does not affect the determination of bribery.
Yang Haijiao: In this case, after Jia Donglai received the vehicle as a gift from Geng, he used it personally for three years. During this period, he did not express any intention or behavior to return it. He already had the subjective intention of illegal possession of the vehicle. and objectively control the facts, so the value of the vehicle should be included in the amount of bribes it accepts.
In judicial practice, similar to the above-mentioned cases where the briber accepts the briber's house, car and other items without changing the ownership registration, it is more common.
It is generally believed that as long as the bribe recipient actually accepts the bribe and achieves objective possession, he has already enjoyed the exclusive benefit of the bribe, and whether he or she goes through legal procedures to realize the transfer of ownership does not affect the determination of bribery.
4 After Jia Dong came to the case, he voluntarily confessed his criminal facts, pleaded guilty and accepted punishment, and his family actively paid part of the illegal proceeds on his behalf. How would these circumstances affect his sentencing?
Yang Haijiao: According to Article 67 of the "Criminal Law of the People's Republic of China", criminal suspects who truthfully confess their crimes can be given a lighter punishment.
Article 15 of the "Criminal Procedure Law of the People's Republic of China" stipulates that if a criminal suspect or defendant voluntarily and truthfully confesses his crime, admits the facts of the crime charged, and is willing to accept punishment, he may be dealt with leniently according to law.
Article 176 of the Interpretation of the Supreme People's Court on the application of the "Criminal Procedure Law of the People's Republic of China" stipulates that the circumstances of recovery and compensation can be considered as sentencing circumstances.
Therefore, confessing and admitting guilt and accepting punishment are the statutory circumstances of a lighter punishment, and voluntarily returning the stolen money is a discretionary circumstance of a lighter punishment.
In this case, Jia Donglai took advantage of his position to seek illegitimate benefits for others and illegally accepted other people's property, the amount of which was particularly huge. His behavior constituted the crime of accepting bribes and should be sentenced to fixed-term imprisonment of more than ten years in accordance with the law.
After Jia Dong came to the case, he was able to truthfully confess the facts of the crime, voluntarily signed the "Affidavit of Guilty and Punishment", and was willing to accept punishment. He could be given a lighter punishment according to law.
Jia Donglai's family members actively paid part of the illegal and criminal income on his behalf and were given a lighter punishment as appropriate.
Based on the facts, nature, circumstances and degree of harm to society of Jia Donglai's crime, this court judged Jia Donglai for accepting bribes and sentenced him to fixed-term imprisonment in accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China. Ten years and six months, and a fine of 500,000 yuan; Jia Donglai's illegal income of 3.6 million yuan was confiscated according to law and turned over to the state treasury; continue to pursue Jia Donglai's illegal income and fruits, and turned over to the state treasury.
(China Discipline Inspection and Supervision News)