Why are the two solicitations for bribes after retirement different in nature?
Starting from the case of Mei Yunnian, former deputy secretary and deputy director of the Development and Reform Commission of Yichang City, Hubei Province
Our reporter Fang Yifei
Special Guest
Wang Zushun Director of the Case Trial Office of the Discipline Inspection and Supervision Committee of Yichang City
Wang Chao Deputy Director of the Tenth Inspection and Investigation Office of Yichang Commission for Discipline Inspection and Supervision
Zhang Wei Prosecutor of the People's Procuratorate of Wujiagang District, Yichang City
Li Weiwen, a full-time member of the Judgment Committee of the People's Court of Wujiagang District, Yichang City
editor's note
This is a typical case of a party member leading cadre taking advantage of the convenience formed by his original power or status after retirement to seek illegitimate benefits for the client and ask for bribes through the behavior of other state staff in his position.
In this case, with regard to Mei Yunnian’s typical violations of discipline and law, how to use the case as a guide to rectify retired party members and cadres who violated regulations and run businesses?
After Mei Yunnian retired, he demanded 280,000 yuan from his boss Song XX, and more than 950,000 yuan from a company in Yichang. Why was the former considered a crime of accepting bribes and the latter as a crime of using influence to accept bribes?
We specially invite staff from relevant units to analyze.
Basic case:
Mei Yunnian, male, joined the Communist Party of China in February 1974.
He used to be the director of the Liaison Office of the Yichang Municipal People's Government in Shanghai, the deputy secretary and deputy director of the party group of the Yichang Development and Reform Commission (hereinafter referred to as the Yichang Development and Reform Commission), and retired in April 2015.
Violation of integrity discipline.
In July 2014, Mei Yunnian invested 500,000 yuan in a stone company in Yichang (the currency is the same below), and was responsible for the daily operation and management of the company. By February 2020, he had received a total of 380,000 yuan in wages and subsidies. Yu Yuan.
Illegal part-time work for remuneration, from May 2020 to April 2021, Mei Yunnian worked part-time in a trading company in Yichang without the approval of the party group of Yichang Development and Reform Commission and filed with the organization department, responsible for daily operation and management. While receiving retirement pay, He received more than 70,000 yuan in wages from the company.
Bribery.
From June 2008 to 2014, when Mei Yunnian served as the deputy secretary and deputy director of the Party Committee of the Yichang Municipal Development and Reform Commission, he took advantage of his position to seek benefits for others, and successively demanded a total of 1.807 million yuan in property from others, of which 280,000 yuan The yuan is requested after his retirement.
misappropriation of public funds.
From 2010 to 2013, Mei Yunnian took advantage of his position and misappropriated 1.085 million yuan of public funds.
Using influence to take bribes.
In the second half of 2015, after Mei Yunnian retired, he took advantage of the convenience formed by his original power or position, and by greeting the staff of the development and reform system, he helped a company in Yichang obtain 2 million yuan for a construction project, from which Mei Yunnian asked for 95 More than ten thousand yuan.
Investigation process:
[Case review and investigation] On March 20, 2022, the Yichang Municipal Commission for Discipline Inspection and Supervisory Committee filed a case for review and investigation of Mei Yunnian's suspected serious violations of discipline and law; on March 24, with the approval of the Hubei Provincial Supervisory Committee, he took detention measures.
[Transfer for review and prosecution] On June 20, 2022, after the meeting of the Standing Committee of the Yichang Municipal Commission for Discipline Inspection, the Yichang Municipal Supervisory Committee transferred the case of Mei Yunnian's suspected bribery, bribery by influence, and embezzlement of public funds to the Yichang Municipal People's Procuratorate. The Yichang Municipal People's Procuratorate designated the Wujiagang District People's Procuratorate to review and prosecute.
[Party discipline sanction] On July 1, 2022, Mei Yunnian was expelled from the party, and his retirement benefits were cancelled.
[Initiation of public prosecution] On November 7, 2022, the People's Procuratorate of Wujiagang District filed a public prosecution with the People's Court of Wujiagang District on suspicion of accepting bribes, using influence to accept bribes, and embezzling public funds.
[First-instance judgment] On December 30, 2022, the Wujiagang District People’s Court sentenced Mei Yunnian to ten years’ imprisonment and a fine of 500,000 yuan for the crime of accepting bribes in the first instance, and three years’ imprisonment for the crime of accepting bribes by using influence , and a fine of 200,000 yuan; for the crime of embezzling public funds, he was sentenced to two years in prison, and he was punished for several crimes, and it was decided to execute 11 years in prison and a fine of 700,000 yuan.
The judgment is now in effect.
In response to Mei Yunnian's typical violations of discipline and law, how can Yichang use the case as a lesson to rectify retired party members and cadres who violated regulations in running businesses and other issues?
Wang Chao: After Mei Yunnian retired, he still did not restrain himself and did not stop. His violations of discipline and law mainly have the following three characteristics: First, he abused his power and acted recklessly to amass wealth.
Mei Yunnian not only embezzled the public funds of the unit, but also asked for bribes from the management and service objects. He took advantage of his position to seek benefits for others in the application of development and reform projects, fund approval, etc., solicited and accepted 807,000 yuan in bribes from private business owners and subordinates, and embezzled 807,000 yuan at the same time. Public funds of 1.085 million yuan.
The second is to run a business in violation of regulations, and to obtain remuneration for part-time jobs in violation of regulations.
Mei Yunnian violated the relevant regulations. After he was employed and retired, he illegally invested in shares in commercial enterprises and violated relevant regulations to work part-time in enterprises for remuneration.
The third is corruption after retirement.
After retirement, Mei Yunnian also took advantage of the convenience formed by his original authority or status to help a company in Yichang obtain project funds by greeting the staff of the development and reform system, and asked for more than 950,000 yuan from it.
Wang Zushun: During the handling of the case, we found that some party members and cadres still mistakenly believe that retirement means entering the "safety box".
Taking Mei Yunnian's case as a lesson, our committee will promote reform based on the case, and further strengthen the supervision and management of retired party members and cadres.
Aiming at the problems exposed in the case of Mei Yunnian that retired party members and cadres violated the regulations to run businesses and obtain remuneration for part-time jobs, the Municipal Commission for Discipline Inspection and Supervision Committee, on the basis of full research and sorting out, suggested to the Municipal Party Committee and promoted this issue to be included in the focus of the Municipal Party Committee's inspections The content, together with the Organization Department of the Municipal Party Committee, conducted discussions on the above issues, systematically sorted out the policies and regulations over the years, and further clarified the policy boundaries of what retired party members and cadres can do and what they can't do.
For industries such as state-owned enterprises that violate regulations and obtain remuneration for part-time jobs, and run enterprises with more prominent problems, formulate rules and regulations such as the "Measures for Preventing Conflicts of Interests of Leaders in the Operation and Management Activities of Municipal State-owned Enterprises (Trial)" and strengthen the leadership of state-owned enterprises. Daily supervision of the team.
The Municipal Commission for Discipline Inspection has included issues such as running businesses in violation of regulations and remuneration of retired party members and cadres for illegal part-time jobs into the focus of daily supervision and inspection. Investigate whether retired party members and cadres have relevant violations of discipline and law.
At the same time, actively coordinate with the Bureau of Veteran Cadres of the Municipal Party Committee to carry out special lectures on discipline and law violations of retired party members and cadres, strengthen the party spirit and discipline awareness of retired party members and cadres, and build a strong ideological defense line for compliance and discipline.
After Mei Yunnian retired, he took a part-time job in a trading company in Yichang privately to get paid. How should this behavior be determined? What is the basis for determining that he borrowed money from management service objects to ask for bribes in the name of borrowing?
Wang Zushun: Retired party members and cadres who illegally obtain remuneration for part-time jobs not only easily lead to problems such as power-for-money transactions, but also lead to unequal competition among market operators and disrupt the normal order of market operations. This is clearly prohibited in terms of discipline and law.
Article 96 of the "Regulations on Disciplinary Actions of the Communist Party of China" stipulates that after resigning or retiring (retired), party members and leading cadres violate relevant regulations and accept employment from enterprises and intermediary agencies within the jurisdiction and business scope of their original positions, or personally engage in For profit-making activities related to the business under the jurisdiction of the original position, if the circumstances are relatively minor, a warning or serious warning will be given; if the circumstances are more serious, a sanction of removal from internal Party positions will be given; if the circumstances are serious, a sanction of party probation will be given.
The Central Organization Department's "Opinions on Further Regulating Party and Government Leading Cadres' Part-time Employment (Occupation) in Enterprises" pointed out that those who resign from public office or retire (retire) after three years of retirement (retirement) and take part-time employment (employment) in enterprises should report to their original units. For the report of the party committee (party group), the company that intends to work part-time (job) will issue a part-time job (job) reason explanation material, and the party committee (party group) of the unit will approve it according to the regulations and file it with the corresponding organization (personnel) department in accordance with the cadre management authority.
With reference to the above provisions, to determine whether the concurrent (assuming) duties of retired party members and cadres constitute violations of regulations and disciplines, the key is to accurately define and deal with them in accordance with regulations from the four aspects of (concurrent) job restrictions, time limit requirements, approval procedures, and salary collection.
In this case, from May 2020 to April 2021, after Mei Yunnian retired, without reporting to the party group of his original unit and without filing with the organization department, he worked part-time in a trading company in Yichang for business management, and While receiving retirement benefits, he received a salary of more than 70,000 yuan from the company, and his behavior should be determined to constitute a part-time job in violation of regulations.
Wang Chao: During the investigation of the case, it was discovered that in November 2011, Mei Yunnian “borrowed” 50,000 yuan from Wang, the general manager of a technology company in Hubei, on the grounds that he was in urgent need of money. A country "borrowed" 40,000 yuan.
When we judge whether Mei Yunnian’s above-mentioned behavior is a normal loan or extortion of bribes, we mainly analyze it from the following aspects: First, referring to the "Minutes of the Symposium on the Trial of Economic Crime Cases by the National Courts", the state staff took advantage of their positions , extorting property from others in the name of borrowing, or illegally accepting property to seek benefits for others, shall be deemed as accepting bribes.
Soliciting bribes is a manifestation of accepting bribes, and does not require the element of "seeking benefits for others".
Second, from a formal point of view, Mei Yunnian did not go through the loan procedures after "borrowing" from Wang and Guo, nor did he agree on the loan interest and repayment time. Subjectively, he had the purpose of illegal possession.
Third, from the perspective of the reason for the loan and the whereabouts of the money, when Mei Yunnian "borrowed" from Wang and Guo, he did not explain the real purpose, and it was actually used for personal expenses. There was no legitimate and reasonable reason and whereabouts of the loan, and Relevant evidence proves that Mei Yunnian has the ability to repay the loan but has not returned it.
Fourth, Wang and Guo are Mei Yunnian's management service objects, and the amount they were extorted was more than 30,000 yuan, which may affect the exercise of Mei Yunnian's powers, and has the nature of a power-for-money transaction.
To sum up, we believe that Mei Yunnian's "borrowing" from Wang and Guo was actually extorting bribes in the name of borrowing, which constituted the crime of accepting bribes.
After Mei Yunnian retired, he demanded 280,000 yuan from Song XX, and more than 950,000 yuan from a company in Yichang. Why are the two charges different?
Zhang Wei: From 2012 to 2014, Mei Yunnian provided help to Song Moumou, the legal representative of a construction company, in the settlement of project funds through the behavior of staff in other countries. ".
After Mei Yunnian retired, he demanded 280,000 yuan from Song XX.
In the second half of 2015, after Mei Yunnian retired, he helped a company in Yichang obtain 2 million yuan in project funds by greeting the staff of the development and reform system, and demanded more than 950,000 yuan from it.
Articles 388 and 388-1 of the Criminal Law respectively provide for the acceptance of bribes through mediation and the use of influence to accept bribes.
There are two key points to distinguish whether state functionaries ask for property after leaving their posts to constitute the crime of accepting bribes (good offices and accepting bribes) or using influence to accept bribes.
First, the subjects are different.
The subject of the crime of accepting bribes (good offices and accepting bribes) is a state employee, while the subject of the crime of using influence to accept bribes is a close relative of a state employee or other person who has a close relationship with the state employee, a resigned state employee or his close relative, and other persons closely related to them.
Second, the objective behavior is different.
Good offices and accepting bribes is a manifestation of the crime of accepting bribes. In mediating and accepting bribes, state functionaries use the convenient conditions formed by their own powers or status to seek illegitimate benefits for the client through the behavior of other state functionaries in their positions. When accepting the client's property, the perpetrator uses the influence generated by the existing working relationship.
In addition, referring to the spirit of the Supreme People's Court's "Reply on How to Handle the Behavior of State Servants Taking Advantage of Their Positions to Seek Benefits for Others after Retirement" And agreed in advance with the trustee that if he accepts the property of the trustee after his retirement, which constitutes a crime, he shall be convicted and punished as the crime of accepting bribes.
The use of influence to accept bribes refers to the resignation of state functionaries who take advantage of the convenience formed by their original powers or status to seek illegitimate benefits for the requester through the behavior of other state functionaries, soliciting or accepting property from the requester.
Specifically, when a state functionary takes advantage of his position to seek benefits for the client, and agrees with the client in advance that he accepts property from the client after he leaves office, he should be punished as a crime of accepting bribes.
A resigned state functionary takes advantage of the convenience formed by his original power or status to seek illegitimate benefits for the client through the behavior of other state functionaries, and accepts the property of the client. Since the above acts all occurred after the state functionary left , the perpetrator's request or acceptance of the client's property is not based on the agreement when he is in office or as the "consideration" for the transaction of power and money when he is in office, but a new behavior, which should be punished as the crime of using influence to accept bribes.
In this case, the relevant evidence proves that Mei Yunnian took advantage of the convenience formed by his authority or status when he was on the job, and provided help to Song XX in the settlement of project funds through the behavior of other national staff in his position. The two parties agreed that Mei Yunnian After retiring, the "return" was cashed. Therefore, Mei Yunnian's behavior of asking Song XX for 280,000 yuan after retirement constituted mediation and bribery, and should be convicted and punished for the crime of accepting bribes.
However, Mei Yunnian's request for more than 950,000 yuan from a certain company in Yichang was due to the fact that after his retirement, he took advantage of his powers or status as the deputy secretary and deputy director of the Party Committee of the Yichang City Development and Reform Commission, through the development and reform system of other national staff. Duty behavior, helping a company in Yichang to obtain project funds, and then asking for property.
Combined with the evidence of the whole case, Mei Yunnian's crime of helping a company in Yichang to make profits and demand for property through other national staff occurred after his retirement, and he should be convicted and punished for the crime of using influence to accept bribes.
During the review and investigation period, Mei Yunnian voluntarily confessed the facts of his crimes of accepting bribes and misappropriating public funds. Does this constitute surrender? How should the punishment be imposed for several crimes?
Li Weiwen: According to the provisions of the first paragraph of Article 67 of the Criminal Law, surrender requires two elements: voluntary surrender and a truthful confession of one's crime.
According to the "two highs" "Opinions on Several Issues Concerning the Handling of Duty-Based Crime Cases Concerning the Sentencing Circumstances of Self-surrender and Meritorious Service", criminals did not voluntarily surrender, but truthfully confessed crimes that were not grasped by the case-handling agency, which were different from crimes that the case-handling agency had already grasped. Such crimes shall be counted as self-surrender.
The case-handling organ only has a small part of the facts of the crime, and if the criminal confesses most of the same kind of crime facts that have not been grasped, it is not tenable to surrender, but generally should be given a lighter punishment.
In this case, after Mei Yunnian came to the case, first, he voluntarily confessed most of the criminal facts of bribery that were not grasped by the supervisory organs, and truthfully explained some of the facts of bribery that had been grasped by the supervisory organs and the facts of accepting bribes by using influence, which did not constitute surrender. However, he should be given a lighter punishment for the crime of accepting bribes; second, he voluntarily confessed the criminal facts of misappropriation of public funds that the supervisory organ has not yet grasped. , can be given a lighter punishment according to the law, and he has no objection to the alleged criminal facts and charges, and has signed the "Affidavit of Plea Guilty and Punishment", voluntarily pleaded guilty and accepted punishment, and can be dealt with leniently according to law.
This court comprehensively considered Mei Yunnian's criminal facts, nature, consequences, degree of harm to society, and related circumstances, and sentenced Mei Yunnian to accepting bribes, sentenced to 10 years in prison, and fined 500,000 yuan; For the crime of accepting bribes, he shall be sentenced to three years in prison and fined 200,000 yuan; for the crime of embezzling public funds, he shall be sentenced to two years in prison.
According to the provisions of Article 69 of the Criminal Law on combined punishment for several crimes, if one person commits several crimes before the judgment is pronounced, except for those who are sentenced to death or life imprisonment, the sentence shall be less than the total term and more than the maximum term of the several crimes, and the execution shall be decided at the discretion of the individual. However, if the total term of fixed-term imprisonment is less than 35 years, the maximum term shall not exceed 20 years.
To sum up, the court finally decided to implement a fixed-term imprisonment of 11 years, fined him 700,000 yuan, and confiscated his criminal proceeds.
(China Discipline Inspection and Supervision News)