Does repayment after "borrowing" constitute bribery?
Starting from the case of Zhao Wenhu, former member of the Standing Committee of the District Committee and head of the Propaganda Department in Xiaoshan District, Hangzhou City, Zhejiang Province
Our reporter Fang Yifei
Special Guest
Dong Zhiyu, cadre of the Seventh Inspection and Investigation Office of the Hangzhou Municipal Commission for Discipline Inspection and Supervision
Xie Feng, cadre of the case trial room of Hangzhou Disciplinary Commission and Supervisory Committee
Zhang Xinling Director of the Second Procuratorate Department of the People's Procuratorate of Tonglu County, Hangzhou City
Li Guojun, Vice President of the People's Court of Tonglu County, Hangzhou City
editor's note
This is a typical case in which a party member and leading cadre issued an IOU to the briber after accepting a bribe, and made a "repayment record" to cover up the criminal behavior and was finally investigated and dealt with.
In this case, Zhao Wenhu's act of accepting bribes appeared to be a creditor-debt relationship, how to find out the details of the case?
Zhao Wenhu issued an IOU after receiving the 2 million yuan from Shi. Is the 2 million yuan a loan or a bribe?
After that, he successively returned 700,000 yuan and interest to Shi. How to characterize this behavior?
The defender pointed out that the 1.7 million yuan transferred by Zhao Wenhu to Lou was a loan from Lou for financing, and Lou's promise to make up the loss of 1.7 million yuan was to repay the loan. How do you view this defense opinion?
We specially invite the staff of relevant units to give an analysis.
Basic case:
Zhao Wenhu, male, a member of the Communist Party of China, served as the mayor of Louta Town, Xiaoshan District, Hangzhou City, Zhejiang Province, secretary of the Party Working Committee of Jingjiang Street, Xiaoshan District, deputy district head of Xiaoshan District, member of the Standing Committee of Xiaoshan District Committee, and director of the Propaganda Department.
Bribery.
From 2012 to 2019, Zhao Wenhu took advantage of his positions as the deputy head of Xiaoshan District, Xiaoshan District, the Standing Committee of Xiaoshan District Committee, and the head of the Propaganda Department to help others in company operations, project undertakings, pre-allocated financial subsidy funds, and increased project investment. Provided assistance in matters, and illegally accepted other people's property totaling RMB 5.09 million (the currency is the same below).
Among them, from 2014 to 2015, Zhao Wenhu took advantage of his position as deputy head of Xiaoshan District to provide assistance to Shi Mou, chairman of a Zhejiang holding group, in project undertaking and other matters.
In June 2017, Zhao Wenhu received 2 million yuan in benefits from Shi through the bank account of Lou, the general manager of a Hangzhou fitness management company.
Afraid of being discovered, a few days later, Zhao Wenhu issued an IOU to Shi, and successively left records of repaying the principal of 700,000 yuan and interest through bank transfers.
In 2016, Lou invested a total of 35 million yuan in a fixed increase project of a fund in Shanghai, of which 1.7 million yuan was invested and held by him on behalf of Zhao Wenhu.
During the period, due to the failure of some projects to raise funds, Lou withdrew more than 9.7 million yuan of capital but did not inform Zhao Wenhu, making him still hold 1.7 million yuan of shares.
In 2018, the investment project exploded and resulted in a total loss.
Houlou promised Zhao Wenhu to make up the full amount of the 1.7 million yuan he lost, and Zhao Wenhu agreed.
In 2019, Zhao Wenhu received a total of 900,000 yuan from Lou in two installments. As of the incident, the remaining 800,000 yuan was not actually obtained.
Investigation process:
[Case review and investigation] On December 2, 2020, with the approval of the Hangzhou Municipal Party Committee and the approval of the Zhejiang Provincial Supervisory Committee, the Hangzhou Municipal Commission for Discipline Inspection filed a case for review and investigation of Zhao Wenhu's suspected serious violations of discipline and law and took detention measures against him.
[Party Disciplinary and Government Sanctions] On May 27, 2021, after studying at the meeting of the Standing Committee of the Hangzhou Municipal Commission for Discipline Inspection and reporting to the Hangzhou Municipal Party Committee for approval, it was decided to give Zhao Wenhu the sanction of expulsion from the party; the Hangzhou Municipal Supervisory Committee gave Zhao Wenhu the sanction of expulsion from public office.
[Transfer for review and prosecution] On May 27, 2021, the Hangzhou Municipal Supervisory Committee transferred Zhao Wenhu's suspected bribery case to the Hangzhou Municipal People's Procuratorate for review and prosecution in accordance with the law.
[Initiate public prosecution] On July 9, 2021, the Hangzhou Municipal People's Procuratorate designated the Tonglu County People's Procuratorate to file a public prosecution with the Tonglu County People's Court on Zhao Wenhu's alleged bribery crime.
[First-instance judgment] On March 3, 2022, the Tonglu County People's Court sentenced Zhao Wenhu to seven years and six months in prison for accepting bribes and fined him 700,000 yuan.
The judgment is now in effect.
On the surface, Zhao Wenhu's "borrowing" is a relationship between creditor's rights and debts. How to find out the facts? What enlightenment does the investigation and handling of this case have on the rectification of some leading cadres' illegal borrowing and other issues?
Dong Zhiyu: In the second half of 2020, after receiving clues about Zhao Wenhu’s related issues handed over by the central inspection team, the Hangzhou Municipal Commission for Discipline Inspection and Supervision Committee attached great importance to it, and immediately set up a task force to carry out preliminary verification of Zhao Wenhu’s related issue clues, and sort out Zhao Wenhu’s relationship During the process of the Internet and Assets Network, it was discovered that Zhao Wenhu's family had abnormal assets and was suspected of accepting bribes and other serious violations of discipline and law.
After reporting for approval, we filed a case against Zhao Wenhu for review and investigation and took detention measures.
Zhao Wenhu is a cautious person. In order to evade the organization's review and investigation, he colluded with the briber many times to make confessions, unified the caliber of the bribes as "borrowing", and kept the IOU and related "repayment records".
In the initial stage of detention, Zhao Wenhu repeatedly explained to the special case team that he and the briber had a civil loan relationship, which was indeed like a private loan from the perspective of bank records, and the investigation of the case was once deadlocked.
The special case team adjusted its direction in a timely manner, cooperated with relevant information technology support departments, and used the data analysis system to conduct in-depth mining of Zhao Wenhu's relevant data involved in the case. It was found that Zhao Wenhu and the briber had the so-called "repayment" behavior after a certain point of time. We Following the clues, he quickly grasped the relevant evidence of Zhao Wenhu's collusion.
Afterwards, on the one hand, the task force fixed the evidence and formed a complete chain of evidence; on the other hand, through patient and meticulous ideological and political work, they broke through the psychological defenses of Zhao Wenhu and others layer by layer.
In the end, Zhao Wenhu confessed the fact that he accepted bribes from others by using other people's bank cards, issuing false IOUs, and making "repayment records".
During the investigation and handling of the case, the special case team also found that Shi benefited from Zhao Wenhu's "care" and quickly "mingled" with the supervision department of the relevant agricultural-related projects. A large amount of state-owned subsidy funds have been lost.
The special case team audited the construction of the project immediately, and recovered more than 10 million yuan of state-owned losses.
Xie Feng: Zhao Wenhu's modus operandi is covert. He has long been associated with businessmen and bosses, formed a community of interests, and intends to use civil loan relationships to cover up bribery.
In this case, power and capital were linked together, which seriously damaged the pro-Qing political and business relations.
Since last year, the Hangzhou Municipal Commission for Discipline Inspection and Supervision has taken this case as a lesson, and has carried out special rectifications on outstanding issues such as illegal business operations and illegal borrowing by leading cadres in the name of individuals or others, and has deployed and carried out civil servants’ illegal business operations. The special supervision on the issue of affiliation of shares and illegal professional titles of listed companies has organized and dealt with many violators of regulations and disciplines.
At the same time, the Hangzhou Municipal Commission for Discipline Inspection and Supervision assisted the Municipal Party Committee in formulating the "Implementation Rules for Standardizing Leading Cadres' Integrity in Political Work and Further Promoting the Establishment of Pro-Qing Political and Commercial Relations (Trial)". Behavior.
Introduce a list of political and business exchanges, use the "positive list" to guide leading cadres to take responsibility in serving enterprises and service development, and use the "negative list" to delineate the red line and high-pressure line for political and business exchanges for leading cadres.
Through the form of listing and setting benchmarks, there are rules to follow in political and business exchanges.
Zhao Wenhu issued an IOU after receiving the 2 million yuan from Shi. Is the 2 million yuan a loan or a bribe? After that, he returned 700,000 yuan and interest one after another. How to characterize this behavior?
Xie Feng: The 2 million yuan is a bribe.
First of all, on the surface, both parties issued an IOU, and Zhao Wenhu later returned part of the principal and interest, which is very similar to a normal private loan. When qualitative, it is necessary to look at the essence through the phenomenon, and accurately distinguish between private loans and bribery.
First, from the perspective of the subjective wishes of both parties, Shi made it clear that the 2 million yuan was based on the favor fee given by Zhao Wenhu for helping him undertake related agricultural projects before. Want to "share a piece of the pie", the two hit it off.
Second, from the perspective of objective behavior, in a normal private lending relationship, the borrower and the lender usually have a relatively stable relationship of trust, have legitimate reasons for borrowing, express their intention to return the loan, and have behaviors such as dunning the loan. In this case, the relationship between the two parties is based on Zhao Wenhu’s authority was used as a medium, and the IOU issued was also to conceal the fact that the 2 million yuan was a favor fee. In fact, Shi had never demanded the loan, and Zhao Wenhu had no real intention of repaying it. The 2 million yuan was a “loan” It is essentially a power-for-money transaction.
Based on the above circumstances, this sum of money is not a general private loan and should be identified as a bribe.
Zhang Xinling: There is a view that the 700,000 yuan returned by Zhao Wenhu to Shi should be deducted from the amount of bribes he accepted. Our court does not agree with this view.
According to Zhao Wenhu’s statement and the testimony of relevant witnesses, Zhao Wenhu issued an IOU of 2 million yuan to Shi Mou shortly after receiving 2 million yuan in bribes, and then transferred the principal of 700,000 yuan to Shi Mou through the bank accounts of Lou Mou and his father Zhao Mou and interest, hoping to create the illusion of private lending through the form of loan notes plus repayment of principal and interest, so as to avoid organizational review and investigation.
Judging from the situation of Zhao Wenhu's transfer, the so-called "interest payment" not only did not follow the interest rate stipulated in the loan agreement, but the payment time and method were relatively random, and the amount of interest paid was very small, which did not meet the objective performance of real interest payment.
At the same time, Shi made it clear that the returned money was only in his safekeeping temporarily, and Zhao Wenhu could take it back at any time. Zhao Wenhu agreed to this, further clarifying the agreement between the two parties to accept bribes.
Subjectively, Zhao Wenhu had no real intention of repaying the 700,000 yuan, but objectively, he still had control over the sum.
Therefore, the 700,000 yuan transferred by Zhao Wenhu to Shi's account should not be deducted from his 2 million yuan bribe.
Before the incident, Zhao Wenhu returned 1 million yuan to a certain briber. Why is this amount still included in the amount of bribes he accepted?
Zhang Xinling: From 2012 to 2018, Zhao Wenhu took advantage of his position as the deputy head of Xiaoshan District, member of the Standing Committee of the Xiaoshan District Committee, and head of the Propaganda Department. Provided help and received 1 million yuan in favors from Sun.
In 2019, Zhao Wenhu returned the 1 million yuan to Sun after learning that the organization might be checking on its related issues.
First of all, the witness Sun’s testimony made it clear that he paid Zhao Wenhu 1 million yuan in order to thank Zhao Wenhu for his help in matters such as the company’s tax-related investigations and the entry of relatives, and hoped to continue to receive Zhao Wenhu’s care.
Zhao Wenhu confessed that when he accepted the 1 million yuan, he clearly knew Sun's intention to pay the money.
Secondly, there was no IOU between Zhao Wenhu and Sun for the 1 million yuan, and there was no interest payment. In fact, the two parties did not reach an agreement to borrow money.
Although Zhao Wenhu returned 200,000 yuan to Sun Mou twice (both were returned by Sun Mou), he stated in his statement that he used cash to repay the two times, mainly to test whether Sun Mou really gave the 1 million yuan, and also In order to cover up the bribery and acceptance of both parties, there is no real intention to repay the money.
Finally, according to the "Two Highs" "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery", paragraph 2 of Article 9 stipulates that after state officials accept bribes, they are investigated and dealt with because of themselves or people or events related to accepting bribes. If the crime is returned or handed in, it will not affect the determination of the crime of accepting bribes.
The fact that Zhao Wenhu voluntarily refunded 1 million yuan to Sun when he learned that he might be checked was due to his disposal of the stolen money after the crime of accepting bribes was completed, which did not affect the determination of the nature of the crime of accepting bribes and the form of completion of the intentional crime.
To sum up, the 1 million yuan should be included in Zhao Wenhu's bribery crime amount.
Xie Feng: According to the provisions of Article 9, Paragraph 1 of the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery" issued by the "Two Highs", if a state functionary accepts a trustee's property and returns or hands it in in a timely manner, it is not bribery.
Generally speaking, as long as it is within a reasonable period of time and it can be reflected that the state functionary has no intention of accepting bribes subjectively, it should be deemed to be "returned or handed over in time".
Timely is not limited to the moment. If there is a subjective intention to return or hand in, but the object cannot be returned or handed in immediately due to objective reasons, it should also be understood as timely if the object is returned or handed in immediately after the objective obstacles are eliminated.
For example, in this case, if Sun hid gold bars and other objects under his desk when he went to Zhao Wenhu's office, and Zhao Wenhu voluntarily handed them over to the discipline inspection and supervision agency after discovering them, he would accept the trustee's property and hand it over in time, and it would not be considered bribery.
In practice, it is necessary to correctly grasp the important cause of the crime of accepting bribes, and analyze specific issues in combination with subjective and objective factors.
The defender pointed out that the 1.7 million yuan transferred by Zhao Wenhu to Lou was a loan from Lou for financing, and Lou's promise to make up the loss of 1.7 million yuan was to repay the loan. How do you view this defense opinion? How to determine the completed and attempted crime in this fact?
Li Guojun: Judging from the bank’s transaction time, on April 28, 2016, Zhao Wenhu delivered 1 million yuan to Lou, and Lou invested a total of 35 million yuan in a fixed increase project of a Shanghai fund on May 11, and on May 20 , Zhao Wenhu transferred another 1.2 million yuan to Lou through another person's account.
Of the 2.2 million yuan, 1.7 million yuan was used to invest in a fixed-increase project of a fund in Shanghai, and 500,000 yuan was used to invest in another project.
In 2018, a Shanghai-based fund's private placement project exploded, resulting in a total loss.
Houlou promised Zhao Wenhu to make up the full amount of the 1.7 million yuan he lost, and Zhao Wenhu agreed.
The trial found that Zhao Wenhu invested 1.7 million yuan in order to obtain investment income, and Lou only invested on his behalf.
At the same time, Zhao Wenhu always believed that all the 1.7 million yuan he invested had been invested in the fixed increase project, and he also asked Lou Mou about the investment trend.
Therefore, from a subjective point of view, the agreement between Zhao Wenhu and Lou Mou on the 1.7 million yuan was to hold investment projects on behalf of others, and there was no intention of borrowing money.
Although part of the 1.7 million yuan was paid later than when Lou paid the fixed-increment project funds of a certain fund in Shanghai, Zhao Wenhu then paid the money to Lou after the two parties had reached an agreement to hold the investment on behalf of others. , does not affect the establishment of the legal relationship between the two parties holding the investment. In addition, during the investment lock-up period, Zhao Wenhu also paid close attention to the income of the investment. The loss was not a loan from Lou for financing.
On this basis, Lou promised Zhao Wenhu to make up for the loss of 1.7 million yuan, in essence, he gave Zhao Wenhu his personal property of 1.7 million yuan.
The above-mentioned behavior of Lou was based on the fact that Zhao Wenhu provided help in seeking a lenient punishment from the judiciary for his crime of insider trading and that Zhao Wenhu had leadership power.
To sum up, the sum of 1.7 million yuan should be determined as bribery, and this court will not accept the defense opinion put forward by the defender.
In addition, after Lou promised to make up for Zhao Wenhu's losses, he paid Zhao Wenhu a total of 900,000 yuan in January and April 2019, and 800,000 yuan remained unpaid.
Lou’s testimony confirmed that the main reason for the failure to pay was that he was short of funds. If there was no crime, he would continue to pay Zhao Wenhu the remaining 800,000 yuan when the funds were sufficient. Zhao Wenhu agreed with this.
For the 800,000 yuan that has not been paid, the two parties have reached an agreement on accepting bribes, which should be included in the amount of bribes accepted.
According to the provisions of Article 23 of the "Criminal Law of the People's Republic of China", if a crime has already been committed but fails due to reasons other than the will of the criminal, it is an attempted crime.
For an attempted crime, the punishment may be given a lighter or mitigated punishment in comparison with an accomplished crime.
Zhao Wenhu's failure to obtain the 800,000 yuan due to objective reasons is a failure due to reasons other than his will, so the 800,000 yuan should be deemed an attempt.
(China Discipline Inspection and Supervision News)