According to the WeChat public account of the Supreme People's Procuratorate, on the 3th, the General Office of the CPC Central Commission for Discipline Inspection, the General Office of the State Supervision Commission, and the General Office of the Supreme People's Procuratorate recently jointly issued a notice and released five typical cases of bribery crimes.
It is understood that some of the five cases released this time were multiple bribes, huge bribes, and bribes paid to many people; Some were bribes paid by party members and state functionaries; Some are bribes in key areas such as law enforcement and justice, and production safety; Some carry out major commercial bribery for the purpose of obtaining national mineral resources; Some of them vainly attempt to evade legal prosecution through bribery, which fully reflects the focus of the work of investigating and dealing with bribery crimes clearly stated at the Second Plenary Session of the 5th Central Commission for Discipline Inspection and the Opinions.
This batch of typical cases fully demonstrates the clear attitude and firm determination of discipline inspection and supervision organs and procuratorial organs to severely punish bribery crimes. In the course of investigating and handling bribery cases, discipline inspection and supervision organs are to increase the intensity of investigation and handling of relevant bribery acts in accordance with law, resolutely file cases where they should be filed, and resolutely transfer those that should be transferred to the procuratorial organs; Procuratorial organs coordinate and closely cooperate with discipline inspection and supervision organs in early intervention in review and other work, and strengthen source governance through methods such as drafting and issuing proposals. While severely punishing bribe-payers in accordance with law, discipline inspection and supervision organs and procuratorial organs also increase the intensity of recovery and correction of improper benefits obtained from bribery in accordance with law, recover improper property interests to the greatest extent, and recommend that relevant units correct improper and non-property interests, and never allow bribers to obtain improper benefits through the crime of bribery or harm the interests of the state, the public interest, or the lawful rights and interests of others.
The responsible persons of the relevant departments of the Central Commission for Discipline Inspection, the State Supervision Commission, and the Supreme People's Procuratorate stressed that discipline inspection and supervision organs and procuratorial organs at all levels should further improve their political standing, deepen the party's centralized and unified leadership over anti-corruption work, and fully understand the great political significance of investigating bribery and bribery together; Always adhere to a strict tone, strict measures, and strict atmosphere, and increase the punishment of bribery crimes while maintaining a high-pressure situation in punishing bribery crimes; Persist in promoting the integration of not daring to be corrupt, not being corrupt, and not wanting to be corrupt, treating both the symptoms and the root causes, and systematically managing them, so as to improve the comprehensive effectiveness of punishing bribery; Adhere to overall planning and coordination, strengthen coordination and cooperation, and form a joint force in punishing bribery; Persist in categorized policies, highlight key points, seek truth from facts, and provide leniency and strictness, continuously improve the accuracy and effectiveness of cracking down on bribery, and resolutely win the protracted battle against corruption.
Chen Moumou's bribery, bribery of influential people, and bribery of non-state functionaries
【Keywords】
Bribery Bribery of influential people Bribery of non-state officials Designated jurisdiction Anti-gang crime eradication
【Essence】
Those who intersect the crime of bribery with crimes involving criminal syndicates, and who help underworld organizations form a "protective umbrella" through bribery, must be resolutely and severely punished. Where a single person commits several crimes or other related crimes, where the supervision organs and public security organs in different localities respectively investigate, investigate, and then transfer them for review and prosecution, overall prosecution and trial jurisdiction shall be made. Where after review and prosecution, it is proposed to change the charge, the procuratorial organs shall promptly communicate with the Supervision Organs and handle it in accordance with law.
【Basic facts of the case】
Defendant Chen Moumou, male, born in September 1968, Han nationality, actual controller of Dongmou Industrial Co., Ltd.
(2008) The crime of bribery. From 2018 to 458, Chen Moumou repeatedly gave Chen Moujun, then mayor of a certain town in a certain city (sentenced), Chen Moujin, secretary of the party committee of a certain town in a certain city (sentenced), and Li Moumou, captain of the criminal police brigade of a sub-bureau of a municipal public security bureau (sentenced), property equivalent to a total of more than 35.<> million yuan (the same currency below), in order to help him seek improper benefits in contracting engineering projects, illegally transferring land and evading criminal punishment for members of underworld organizations under his leadership.
(2008) The crime of bribing influential persons. From 2019 to 458, Chen repeatedly gave Mai (who was the main leader of a municipal party committee) property equivalent to a total of more than 57.<> million yuan. With the help of Mai, Chen Moumou took advantage of the convenient conditions formed by the authority and position of the main leader of a municipal party committee, and sought improper interests in contracting engineering projects through the actions of Xu Moumou, director of the Development and Reform Commission of a county, and others.
(2010) The crime of bribing non-state functionaries. From 2011 to 200, Chen repeatedly gave Xiong Moumou, then secretary of the party branch of a town and village in a certain city (already judgment), a total of <> million yuan to help Dongmou Industrial Co., Ltd., which he actually controlled, seek improper interests in handling the transfer of land operation rights.
Chen Moumou was suspected of organizing, leading underworld organizations, intentional injury and other crimes (specific facts omitted), and after the investigation of the Haikou Municipal Public Security Bureau was completed, he was transferred for review and prosecution, and the Haikou Municipal People's Procuratorate filed a public prosecution with the Haikou Intermediate People's Court on September 2020, 9. On December 27, 2020, the Haikou Intermediate People's Court sentenced Chen to death in the first instance, suspended his execution for two years, deprived him of political rights for life, and confiscated all his personal property.
Chen Moumou was suspected of bribery and bribery of non-state employees, and the investigation by the Sanya Supervision Commission of Hainan Province was concluded, and he was transferred to the Sanya Municipal People's Procuratorate for review and prosecution on October 2020, 10. On October 19, the Sanya Municipal People's Procuratorate transferred the case to the Haikou Municipal People's Procuratorate for review and prosecution. On November 10 of the same year, the Haikou Municipal People's Procuratorate prosecuted Chen on suspicion of bribery, bribery of influential persons, and bribery of non-state functionaries. On July 22, 11, the Haikou Intermediate People's Court rendered a first-instance judgment, sentencing Chen to 17 years in prison and fining him 2021,7 yuan for bribery; sentenced him to six years' imprisonment and a fine of 26,<> yuan for bribery of influential persons; sentenced him to four years' imprisonment and a fine of <>,<> yuan for bribery of non-state officials; He was sentenced to <> years' imprisonment and fined $<>.<> million. In conjunction with the crimes of organizing and leading underworld organizations, and intentional injury, it was decided to carry out the death penalty with a two-year reprieve, deprivation of political rights for life, and confiscation of all personal property. After the first-instance judgment, the defendant Chen Moumou did not appeal, and the judgment took effect.
【Supervision and procuratorial performance of duties】
(1) Handle jurisdictional jurisdiction for cases involving each other in accordance with law, and make overall plans for the review and prosecution of the main case and related cases. In this case, Chen's crime was of a bad nature and had a significant impact, and one person committed several crimes, which were investigated and investigated by the supervision organs and public security organs in different places, and the time and stage of handling the case were different. In order to ensure a smooth connection between cases, the Supervision Organs strengthen coordination with the public security organs, strengthen overall guidance for the entire case, and promptly communicate with the procuratorate on matters such as case investigation, investigation progress, and jurisdiction. After the Haikou Municipal People's Procuratorate initiated a public prosecution of Chen's criminal cases involving criminal syndicates, intentional injury, etc., the procuratorate promptly consulted with the judicial authorities to designate Chen's suspected bribery crimes into the jurisdiction of the Haikou Municipal Judicial Organ, so as to facilitate ascertaining the facts of the case and the connection between this crime and other crimes, and ensure an overall grasp of the facts of the case and the correct application of the law.
(2) Strengthen supervision and inspection cooperation during the review and prosecution process, supplement and improve evidence, and accurately determine crimes. The Supervision Organ transferred Chen for prosecution on suspicion of bribery and bribery of non-state functionaries, and after examination, the procuratorate found that the characterization of the criminal facts of Chen Moumou's bribery to Mai may be inaccurate, and submitted an opinion to the Supervision Organ. After supplementary evidence, the supervision organ found that Mai was a full-time driver of the main leader of a certain city at that time, was a hired person who signed a labor service contract with a state organ, did not have the status of a state worker, and his job duties did not belong to the performance of official duties; It mainly uses the close relationship with the leader and the special status of the leader driver to greet other state staff directly or through the leader, and help Chen Moumou obtain improper benefits in contracting engineering projects. After communicating with the supervision organ, the procuratorate determined that it was guilty of bribing an influential person, and after the prosecution, it was confirmed by the judgment of the judicial organ.
(3) Comprehensively summarize the circumstances of the crime throughout the case, and lawfully submit sentencing recommendations for severe punishment. The procuratorial organ comprehensively considered the relationship between Chen's bribery crime and the crime involving criminal syndicates, and held that the benefits obtained by his bribery behavior were not only seeking economic resources for the underworld organization he led, but also helping members of the underworld organization evade legal prosecution, and there were circumstances such as "bribing three or more people", "using illegal gains for bribery", "bribing judicial personnel, affecting judicial justice", etc., the nature of the crime was egregious and the harm to society was great, and it should be severely punished, and the judicial organ should accurately submit sentencing recommendations to the judicial organ in accordance with law. It was also supported by the judgment of the judicial organ and achieved good results in handling the case.
【Typical significance】
(1) In the course of handling bribery cases and related cases, jurisdiction shall be determined in an overall manner. Where a single person commits several crimes or other related crimes, where the supervision organs and investigative organs in different localities separately investigate and investigate, the supervision organs and procuratorial organs shall strengthen communication, and in order to ensure the overall effectiveness of case handling, make overall plans to put forward opinions on judicial jurisdiction, and the procuratorial organs are to promptly consult with the people's courts for handling. Generally, the principle of determining jurisdiction with the main case shall be adhered to, and the judicial organ accepting the main case shall have jurisdiction over the related case together, ensuring that the case is uniformly identified and properly handled.
(2) Attention shall be paid to reviewing the differences between different types of bribery crimes, and where the procuratorial organs intend to change their characterization, they shall promptly communicate with the Supervision Organs and handle them in accordance with law. Where a crime of bribery is suspected, the procuratorial organs shall pay attention to reviewing evidence such as the identity of the bribe recipient, the scope of duties, and the relationship between the persons involved in the case, and accurately determine the crime in accordance with law. Where the bribe recipient is not a state functionary, it cannot be recognized as the crime of bribery as provided for in article 389 of the Criminal Law, but shall, on the basis of his actual identity and relationship with a state functionary, and meet the provisions of Articles 164 and 390-1, respectively, be recognized as the crime of bribery of non-state functionaries and the crime of bribery of influential persons. In the course of reviewing and indictment, where the procuratorial organs discover that the crimes identified by the Supervision Organs when transferring them for review and prosecution may not be accurately characterized, they shall promptly communicate with the Supervision Organs and accurately determine the charges in accordance with law based on the facts ascertained.
(3) In handling criminal bribery cases, the procuratorial organs shall lawfully submit sentencing recommendations based on the facts, nature, circumstances, and degree of social harm of the crime. Those who intersect the crime of bribery with crimes involving criminal syndicates, and who help underworld organizations form a "protective umbrella" through bribery, must be resolutely and severely punished. Procuratorial organs shall comprehensively consider the nature of seeking improper interests, the fields involved, and the losses suffered to the interests of the state and the people, and submit a heavier punishment recommendation in accordance with law.
【Related Regulations】
Articles 389, 390, 390-1 and 1.1 of Article 164 of the Criminal Law of the People's Republic of China
Article 45 of the Supervision Law of the People's Republic of China
Guo Moumou's bribery case
【Keywords】
Bribery in the field of mineral resources "family-style" corruption leniency and strictness
【Essence】
Capital-intensive and profit-intensive and profit-making in the field of mineral resources, with many administrative examination and approval links and concentrated powers, are key areas where bribery and bribery are prone to occur, and supervision organs and procuratorial organs should strengthen the investigation and handling of the crime of bribery in the field of mineral resources. We must resolutely punish "family-style" corruption that seriously undermines the political and economic ecology.
【Basic facts of the case】
Defendant Guo Moumou, male, born in February 1969, Han nationality, legal representative of a mining company in a certain city.
From 2007 to 2013, Guo Moumou (Guo's brother, has been judged) real estate, vehicles, cash and other property equivalent to a total of 2832.74 million yuan (the same currency) to Guo Mousheng (Guo's brother, who has been judged) in the process of contracting mining projects, acquiring company shares, mine operations, etc., in order to obtain improper benefits in the process of contracting mining projects, acquiring company shares, mine operations, etc.
2012年，郭某某为感谢担任地矿公司财务总监的邓某某(已判决)利用其职务便利，在公司注册、收购地矿公司股份、入股并经营某矿业公司等事项上提供帮助，多次给予邓某某财物折合共计1721.8万元。
2007年1月至4月、2011年至2013年，郭某某为感谢担任某云矿金业公司总经理的和某某(已判决)在收购矿山和矿山经营开发中获取不正当利益提供帮助，先后多次给予和某某现金共计973万元。
综上，郭某某为谋取不正当利益，给予国家工作人员财物折合共计5527.54万元。
本案由云南省玉溪市江川区监察委员会调查终结，于2018年12月26日移送江川区人民检察院审查起诉。2019年2月22日，江川区人民检察院以郭某某涉嫌行贿罪向江川区人民法院提起公诉。同年9月5日，江川区人民法院以行贿罪判处郭某某有期徒刑五年，并处罚金五十万元。判决宣告后，郭某某提出上诉。玉溪市中级人民法院于2020年12月17日裁定撤销原判，发回重审。2021年12月24日，江川区人民法院判决认定郭某某构成行贿罪，因其具有自首、立功等情节，判处郭某某有期徒刑四年六个月。郭某某未再提出上诉，判决生效。
【监察、检察履职情况】
(一)仔细研判犯罪主体，准确把握案件定性。本案中，郭某某是在经营某矿业公司时向其兄郭某生及邓某某等人行贿，案件性质认定上存在个人行贿还是单位行贿的分歧。检察机关经认真审查案件证据，并与监察机关充分沟通后，认为郭某某实施行贿的主观故意系其本人产生，没有通过集体讨论等方式形成单位意见，是郭某某个人意志的体现。同时，用于行贿的资金全部来自公司所得利润分配给郭某某个人所有的钱款，并未使用公司款项，也未经过公司财务管理系统，且行贿所得利益归属其个人。综合全案证据，检察机关依法以郭某某涉嫌行贿罪提起公诉，法院判决确认。
(二)全面审查认定事实，依法严惩行贿行为。监察机关、检察机关相互配合、全面梳理、核实犯罪事实，依法认定行贿受贿双方内外勾结造成国有资产流失的情况。经过逐项梳理郭某某行贿犯罪事实，发现其利用郭某生的职务便利及职务影响力，获取郭某生及其他公职人员的帮助并进行利益输送，在收购和经营国有矿产资源过程中获取高额利润，导致4800余万元国有资产流失，严重影响矿产资源勘探开发秩序。由于行贿对象涉及多个国家机关和国有矿产企业的公职人员，行贿次数多、时间跨度长，行贿财物除了货币外，还有房产、商铺、车辆等巨额财物，加之行贿受贿双方利用亲情关系，采用代为持有等较为隐蔽的手段收受财物，给事实的认定带来较大困难。监察机关、检察机关充分运用工作会商机制，加强协商研判，认定他人代持的房产、车辆等涉案财物应当计入行贿数额。如郭某某的妻子代为持有的价值220万余元的别墅和商铺、落户在郭某生女婿名下的价值100余万元的车辆均被依法认定为贿赂所得，并最终被法院判决所确认。
(三)适用认罪认罚从宽制度，落实宽严相济刑事司法政策。本案行贿数额高达5527.54万元，且具有向三人以上行贿、造成国有资产流失等情况，应当认定为“情节特别严重”。但郭某某在调查期间认罪态度较好且有积极悔罪表现，主动交代了监察机关尚未掌握的其向郭某生行贿2152.49万元的事实，供述始终稳定，积极协助监察机关追缴涉案款物，对与本案相关的其他系列案件顺利查办起到关键性作用。其还在调查期间主动揭发他人犯罪行为且经查证属实，构成立功。审查起诉阶段，检察机关在准确认定案件性质、事实及量刑情节的基础上，多次向郭某某详细说明认定罪名和量刑建议的法律规定，充分释法说理，郭某某愿意认罪认罚，并在辩护人的见证下自愿签署了认罪认罚具结书。检察机关提起公诉时，依法建议对其从轻或者减轻处罚。法院作出重审一审判决后，被告人郭某某认罪服法。
【典型意义】
(一)坚持受贿行贿一起查，加大对重点领域行贿犯罪查办力度。国有企业尤其是矿产企业经营过程中，涉及资金量大，专业性强，监管难度较大。监察机关、检察机关要紧盯重点领域，加大办案力度。办理矿产资源领域行贿受贿案件时，要积极争取自然资源、审计等相关职能部门的支持，进一步强化协作配合。监察机关在办案中遇到证据收集、事实认定、案件定性、法律适用等问题，可以向行政机关进行咨询，听取检察机关意见或者邀请检察机关提前介入，也可以组织进行研究论证，共同形成打击行贿犯罪的合力。
(二)准确把握单位行贿罪与行贿罪的区分，从意志体现及利益归属两方面依法予以认定。对于公司、企业主管人员或实际控制人行贿的，应当结合单位性质、组织管理机制、资金来源、犯罪收益归属等进行综合判断，准确区分认定行贿罪及单位行贿罪。行贿罪的犯罪故意产生于行贿人自身，而非来源于单位意志，行贿所得利益亦归属于行贿人个人；单位行贿罪是出于单位意志，获取的不正当利益归属于单位。对于以单位名义行贿，而利益归个人所有的，应当认定为自然人犯罪。
(三)斩断腐败问题利益链，依法惩治“家族式”腐败。“家族式”腐败作案手段较为隐蔽，依仗领导干部的权力和影响力，以亲情为链条，通过经商办企业谋取私利，严重破坏政治生态和经济生态，危害极大。针对“家族式”腐败的特点，监察机关、检察机关要加大调查、审查力度，重点关注亲属间的资金流向、财产状况、关联企业等情况，全面分析腐败问题背后的利益链，深挖建立在亲情关系基础上权钱交易行为或者问题线索，营造和弘扬崇尚廉洁、抵制腐败的良好风尚。
【相关规定】
《中华人民共和国刑法》第三百八十九条、第三百九十条
《中华人民共和国刑事诉讼法》第十五条、第一百七十六条
《中华人民共和国监察法》第四十五条
马某某、徐某某等九人系列行贿案
【关键词】
行贿 交通执法 洗钱 立案监督 监检配合 溯源治理
【要旨】
检察机关在提前介入受贿案件时，发现行贿犯罪人线索，应当向监察机关提出意见建议。对监察机关依法移送公安机关的洗钱等刑事犯罪线索，检察机关应履行立案监督职责，促使公安机关及时依法立案侦查。对案件暴露出的相关单位廉政、履职中的普遍性、倾向性问题，监察机关、检察机关可以督促相关单位进行整改。
【基本案情】
被告人马某某、徐某某等9人，系从事汽车维修、高速公路停车场运营、车辆年审服务等业务的社会人员。
2017年1月至2018年10月，马某某、徐某某等9人分别多次请托某市公安局高速交警支队某大队交通民警刘某(已判决)，由刘某利用负责查处车辆违法的职务便利，对其大队查处的违法车辆予以放行，帮助违法人员逃避处罚。为感谢刘某的帮助，马某某、徐某某等9人分别向刘某行贿3.58万元人民币(币种下同)至15.34万元不等。
2019年4月17日至2020年3月30日，山东省济南市历下区监察委员会陆续将马某某、徐某某等9人以涉嫌行贿罪移送济南市历下区人民检察院审查起诉。历下区人民检察院经审查，均适用认罪认罚从宽制度。案件提起公诉之后，济南市历下区人民法院全部采纳量刑建议，于2019年7月15日至2020年8月28日，分别以行贿罪判处马某某、徐某某等9人有期徒刑六个月、缓刑一年至有期徒刑十个月不等，分别并处罚金十万元。判决均已生效。
【监察、检察履职情况】
(一)准确把握案件定性，严厉打击交通执法领域行贿犯罪。监察机关对刘某受贿案立案调查时，就案件定性、取证方向等听取检察机关意见。检察机关认为，刘某涉嫌受贿罪，同时基于案件存在的每笔行贿数额仅有几千元，而对应的货车司机及车主数量众多，与受贿人刘某无直接接触，范围遍布全国，放行后不再与相关人员进行联系等具体情况，分析提出可以将马某某、徐某某等人确定为行贿人的调查方向。监察机关根据马某某、徐某某等人以谋取不正当利益为目的直接给付刘某钱款，累计数额较高的具体事实，考虑到此类交通执法领域“黑中介”“车虫”的行为具有严重的社会危害性，应当予以打击，采纳检察机关意见，对本案9名涉案“黑中介”全部以行贿罪立案调查。监察机关、检察机关加强沟通配合，明确将转账记录、交易凭证及微信聊天记录等电子数据及行贿人供述与辩解、相关货车司机的证言等作为重点取证内容，为深入调查指明方向。
(二)移送洗钱犯罪线索，监督公安机关立案侦查。本案中，证人陈某雷应刘某要求，曾办理一张银行卡供刘某用于收取贿赂款。刘某在被调查期间，为掩饰收受贿赂行为，安排陈某雷将卡内赃款46万元取现转移，并将账户销户。经审查，陈某雷明知刘某为规避组织调查，银行卡内款项可能系受贿所得，仍实施上述行为，涉嫌洗钱犯罪。监察机关履行互涉案件组织协调职责，将该线索移送公安机关，检察机关监督公安机关对该案立案侦查。陈某雷最终被法院以洗钱罪判处有期徒刑一年，缓刑一年，并处罚金二万五千元。
(三)强化溯源治理，有针对性地制发检察建议。为积极服务保障中心大局，从源头上减少该类犯罪，检察机关向某市高速交警部门制发检察建议书，建议高速交警部门强化廉政教育、完善执法权监督制约机制。该市高速交警部门立即开展警示教育和自查自纠工作，专门邀请办案检察官在全市交警系统中层培训班开展专题授课，并对漠视群众利益、乱作为的交警进行调离，对发现的曾有乱收费行为的交警给予党纪政务处分，取得良好效果。
【典型意义】
(一)加大行贿案件查处力度，对危害严重的行贿犯罪零容忍。监察机关、检察机关在打击受贿犯罪的同时，要积极能动履职，重视依法查办行贿犯罪。对多次行贿、向执法司法人员行贿的，依法加大惩处力度，斩断各种形式的行贿受贿链条，净化执法司法环境。
(二)强化“双查”意识，同步审查洗钱犯罪线索。监察机关、检察机关在调查、审查贿赂案件时，要注重调取审查犯罪所得及其收益的来源、性质及去向的相关证据，如资金的转账、交易记录等，注意分析发现洗钱犯罪线索，并做好线索的移送和跟踪监督工作，更加有力地惩治犯罪。
(三)注重发挥源头治理作用，努力做到“办理一案、治理一片”。监察机关、检察机关根据案件反映出的问题，从多发、频发案件中发现深层次原因，可以通过制发监察建议书、检察建议书的方式，督促相关单位积极整改，加强廉政教育和建章立制工作，并有针对性地开展法治宣传、廉政宣讲，有效推进执法环境改善。
【相关规定】
《中华人民共和国刑法》第三百八十九条、第三百九十条、第一百九十一条
《中华人民共和国监察法》第四十五条
张某、陆某行贿案
【关键词】
行贿 追赃挽损 财产刑运用 纠正不正当非财产性利益 能动履职
【要旨】
监察机关、检察机关要落实受贿行贿一起查的精神，强化协作配合，提高线索处置效率。加大对行贿犯罪所获不正当利益的追缴力度及财产刑的运用，纠正不正当非财产性利益。针对办案中发现的突出问题，积极能动履职、延伸职能，共同做好督促涉案单位整改落实工作。
【基本案情】
被告人张某，女，1962年2月出生，汉族，退休职工。
被告人陆某，男，1961年11月出生，汉族，某职业技术培训中心员工。
2015年至2016年，被告人张某、陆某分别向担任某市城乡建设和管理委员会人才服务考核评价中心(以下简称考评中心)信息网络管理员的江某(已判决)请托，由江某利用其负责整理、报送本市建筑施工企业主要负责人、项目负责人和专职安全生产管理人员安全生产知识考试(以下简称三类人员考试)成绩数据的职务便利，私自将张某提供的278名、陆某提供的236名人员信息添加至其报送的数据中，并虚构考试合格成绩，帮助上述共计514人在未参加考试的情况下，获得三类人员考试合格成绩及《安全生产考核合格证书》。后张某先后52次给予江某共计32.89万元人民币(币种下同)，陆某先后57次给予江某共计29.75万元，张某从中获利18.48万元，陆某从中获利4.12万元。
张某、陆某行贿案分别由上海市黄浦区监察委员会调查终结，上海市黄浦区人民检察院于2019年9月29日以行贿罪分别对张某、陆某提起公诉。同年10月25日，黄浦区人民法院作出一审判决，以行贿罪判处张某有期徒刑一年四个月，缓刑一年四个月，并处罚金十万元；以行贿罪判处陆某有期徒刑一年三个月，缓刑一年三个月，并处罚金十万元。一审判决后，被告人张某、陆某均未上诉，判决已生效。
【监察、检察履职情况】
(一)全面履行职责，从严查处行贿人员。本案系监察机关在办理江某受贿案时，发现张某、陆某存在重大行贿犯罪嫌疑并立案调查。经监察机关查明，张某、陆某的行贿对象系国家工作人员，行贿次数多、时间跨度较长且请托内容涉及建设施工安全生产管理领域，行贿行为危害性大，属于受贿行贿一起查的重点对象。行贿人的行为不仅侵犯了国家工作人员职务的廉洁性，也损害了相关资格考试的权威性、公平性，加之涉案人数众多、涉及建设工地数量众多，给建筑工程安全带来潜在危害。
(二)加强监检配合，充分发挥衔接机制对案件处置的作用。监察机关依托监检联席会议机制，加强与检察机关协调联动，通过商请检察机关提前介入、重大问题会商，加强工作衔接配合。同时，监察机关、检察机关积极履行追赃挽损职责，追缴本案行贿人因行贿犯罪获取的不正当利益。对于财产性利益，监察机关综合运用讯问、查询、调取、冻结、搜查等措施，对行贿人获利情况进行准确认定。检察机关审查起诉期间，行贿人主动退缴行贿所得财产性利益；对于非财产性利益，针对本案中考生未参加考试即获取《安全生产考核合格证书》这一情况，监察机关、检察机关督促考评中心及时纠正。鉴于对行贿人立案调查期间，大部分人员的合格证书已近失效期，经与相关部门沟通协商，督促相关人员必须尽快重新参加继续教育并考试，如未重新参加继续教育或考试成绩不合格，先前发放的证书予以作废。
(三)积极做好释法说理，全面提升执法工作效果。行贿人张某在监察机关调查江某受贿犯罪问题时，能够主动配合工作，但在对其本人的问题进行调查时，存有抵触情绪。办案人员贯通纪法情理，加强对行贿人普法宣传和教育，细致做好释法说理与心理疏导工作，促使行贿人转化认识。同时未对其采取留置措施，一步步为其“解心结”，最终张某认罪悔罪并表示愿意退缴非法所得。
(四)强化警示教育，以案促改，提升反腐败综治效能。监察机关和检察机关组织市住建委、驻市建设交通工作党委纪检监察组的30余名工作人员参加张某、陆某行贿案庭审旁听，开展廉政主题庭审教育活动。检察机关办案人员还赴涉案单位考评中心走访调研，向考评中心制发检察建议并公开宣告，明确指出考试数据管理、考风考纪要求、考务人员监督等方面存在的问题，并有针对性地提出升级技术系统、建立失信惩戒黑名单、建设廉政风险防控机制等建议。考评中心积极整改，重新建立了一套更为完善透明的考务工作制度、启用改进后的新机考软件和管理系统、采用非对称加密数据校验法报送数据，构建全市建筑施工安全生产领域考务工作的廉政制度防火墙与信息技术安全网。
【典型意义】
(一)强化对重点领域行贿犯罪的审查意识，提高查办行贿案件的能力。监察机关、检察机关要在办理受贿案件中注重梳理行贿犯罪线索，提高对行贿犯罪事实的认定和证据审查判断运用能力，加大对行贿犯罪惩处力度。同时持续强化监检协作配合，畅通移送线索渠道，形成惩治行贿犯罪工作合力。特别是针对关键领域行贿受贿犯罪案件查办过程中发现的线索，监察机关、检察机关要及时予以会商研判、加快线索移送、提高立案效率，形成对重点领域犯罪的严查快打态势。
(2) Increase the use of punishment for recovering stolen goods and recovering property and property, and eliminate the negative consequences caused by bribery to the greatest extent. In the course of handling bribery cases, supervision organs and procuratorial organs should conscientiously perform their duties of recovering stolen goods and recovering losses, do their best to recover illegal gains, urge bribe-givers to return the property benefits obtained through bribery, and recover losses to the greatest extent. Procuratorial organs should rely on the leniency system for admitting guilt and accepting punishment to urge bribers to voluntarily admit guilt and accept punishment, and put forward accurate sentencing recommendations and pay attention to the use of property punishment based on the facts, circumstances, amount, circumstances of obtaining improper benefits, attitude of admitting guilt and repentance, and returning stolen money and stolen goods. For improper and non-property benefits obtained from bribery, urge relevant units to take timely measures to correct them in accordance with provisions, and eliminate the negative impact of bribery.
(3) Strengthen the active performance of duties and enhance the effectiveness of social governance. Where it is discovered in the course of handling cases that there are institutional loopholes and hidden management dangers behind corrupt conduct, they may actively urge relevant units or relevant departments to use cases to promote reform, establish rules and regulations, investigate and fill gaps at the institutional level, eradicate the soil for corruption such as bribery, and bring about source control of corruption problems in key areas. Pay attention to carrying out diversified warning education, interpret the law with cases, strengthen publicity, educate people around them with surrounding events, and warn one party with one case.
【Related Regulations】
Articles 389 and 390 of the Criminal Law of the People's Republic of China
Article 176 of the Criminal Procedure Law of the People's Republic of China
Article 45 of the Supervision Law of the People's Republic of China
Article 11 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Bribery
Lu Moumou's bribery and bribery case
【Keywords】
Bribery and bribery are investigated together, supervision and inspection cooperation, trial supervision procedures, protests, pleas of guilt and punishment
【Essence】
Supervision organs and procuratorial organs should strengthen coordination and cooperation, dig deep into clues on bribery in the course of investigating and handling cases such as accepting bribes in advance, and supplement relevant evidence, and pursue prosecutions in accordance with law. Where the use of bribery to obtain meritorious clues leads to errors in the original effective judgment, a protest must be filed in accordance with the trial supervision procedures. Strengthen the interpretation of the law and reasoning, urge criminal suspects and defendants to admit guilt and repent, apply the system of leniency in admitting guilt and accepting punishment in accordance with law, and ensure that punishment is deserved.
【Basic facts of the case】
Defendant Lu Moumou, male, born in May 1968, Han nationality, was formerly the deputy director of the state-owned asset management office of a county in a certain province and the chairman of the county SME Loan Guarantee Co., Ltd.
From January 2012 to May 1, when Lu was the chairman of a county SME Loan Guarantee Co., Ltd., he took advantage of his position to seek benefits for others, and illegally accepted property equivalent to a total of 2013,5 yuan (the same currency below). On June 4, 82, Lu Moumou surrendered to the Jinyun County People's Procuratorate in Zhejiang Province and truthfully confessed the criminal facts of accepting bribes. On October 2013, Lu informed the public security organs of the whereabouts of Zhang Moumou, a fugitive in another case, and Zhang was later captured. On October 6, the Jinyun County People's Procuratorate filed a public indictment on suspicion of accepting bribes. On October 14, 10, the Jinyun County People's Court convicted Lu of accepting bribes, but he turned himself in and showed meritorious service, and was exempted from criminal punishment; Recover 8,10 yuan of Lu's illegal income and hand it over to the state treasury. After the judgment was made, Lu did not appeal, and the judgment took effect.
In August 2019, the Jinyun County Supervision Commission and the Jinyun County People's Procuratorate found that Lu had paid bribes when handling the case of Wang Moumou, an auxiliary police officer of the patrol special police brigade of a county public security bureau. After investigation, in August 8, Lu asked Wang Moumou (already verdicted) to help find meritorious clues, and promised to thank Wang Moumou afterwards. On October 2013 of the same year, Lu learned the whereabouts of Zhang Moumou, a fugitive from Wang, and "reported the case" to the public security organs. Afterwards, Lu Moumou gave Wang Moumou 8,10 yuan through a third person, and Wang Moumou accepted it. In view of the previous court judgment finding that Lu's meritorious performance was obtained through bribery, resulting in an error in the original effective judgment, on August 8, 20, the Jinyun County People's Procuratorate of Zhejiang Province filed a protest against the Lishui City People's Procuratorate of Zhejiang Province regarding Lu's bribery case. On September 2019, the Lishui Municipal People's Procuratorate filed a protest with the Lishui Intermediate People's Court; On September 8, the Lishui Intermediate People's Court ordered the Jinyun County People's Court to retry the trial.
On August 2020, 8, the Supervision Commission of Jinyun County, Zhejiang Province, transferred Lu for investigation and prosecution on suspicion of bribery. On September 17, the Jinyun County People's Procuratorate prosecuted Lu on suspicion of bribery. On December 9, the Jinyun County People's Court made a retrial judgment on the grounds that Lu had committed the crime of accepting bribes, sentenced him to one year in prison, and recovered 29,12 yuan of Lu's illegal gains. On December 25, the Jinyun County People's Court sentenced Lu to six months' detention for bribery; He was sentenced to one year's imprisonment with the crime of accepting bribes. After the judgment was made, Lu did not appeal, and the judgment took effect.
【Supervision and procuratorial performance of duties】
(20) Intervene in related cases in advance, and file a protest after joint supplementary evidence. In the course of investigating and handling the case of Wang Moumou accepting bribes, abusing his power, and helping criminals evade punishment, the supervision organs discovered that Lu had paid a bribe of <>,<> yuan to Wang in order to find clues about meritorious service. Upon consultation with the supervision organs, the procuratorial organs intervened in Wang's case in advance. After joint discussion, the supervision organ and the procuratorate held that Lu was suspected of the crime of bribery, and that Lu's original conviction for accepting bribes may have been erroneous in the determination of facts. After learning the details from the person in charge of the original case and obtaining the original case file materials, the procuratorate found that the evidence in the original case about how Lu learned the location information of the fugitive Zhang Moumou was relatively thin. The supervision organs thoroughly investigated and collected evidence, supplemented the testimony of Zheng Moumou and others, the call records of relevant personnel and other documentary evidence, confirmed Wang's confession, and also confirmed the fact that Lu bribed the clues of meritorious service, and found out that Lu was "fake meritorious service". The procuratorial organ then lodged a protest with the higher procuratorial organ, and the higher procuratorial organ filed a protest with the judicial organ at the same level.
(20) Strengthen coordination in supervision and inspection, clarifying the direction of investigation and evidence collection. Lu's suspected crime of bribery was a crime of omission in the original case, and while the procuratorial organ protested against Lu's bribery case, the supervision organ conducted a comprehensive and in-depth investigation into Lu's bribery case. The Supervision Organs consulted with the procuratorate to intervene in advance, and after discussion, they jointly held that Lu, as a state functionary, bribed judicial personnel to achieve the purpose of mitigating criminal responsibility, and the circumstances were egregious, and criminal responsibility should be pursued in accordance with law. After the investigation was completed, the supervision organ transferred Lu's bribery case to the procuratorate for review and prosecution. The procuratorial organ reviewed and determined that Lu bribed Wang Moumou for <>,<> yuan to buy meritorious clues constituted the crime of bribery, and initiated a public prosecution in accordance with law.
(20) Supervision and inspection coordination to strengthen evidence, eliminating prosecution and defense disputes before trial. During the review and prosecution of the bribery case, Lu argued that the <>,<> yuan was coerced by Wang Moumou and refused to admit guilt. The defense lawyer argued that Lu was blackmailed, not a bribe, and that Lu played an important role in capturing Zhang. In response to Lu's defense and defense lawyers' defense opinions, the Supervision Organs supplemented evidence materials such as the testimony of Shi and other witnesses, call records, and explanations of the capture of Zhang. Before trial, on the basis of relevant evidence, the procuratorial organs communicate with defense lawyers on the determination of facts and sentencing recommendations, fully listen to opinions, and obtain the defense lawyers' approval, laying a solid foundation for further work on admitting guilt and accepting punishment.
(4) Strengthen the interpretation of the law and reasoning, and promote changes in attitudes. After the case was transferred for review and prosecution, Lu still had strong resistance. In order to urge Lu to admit guilt and accept punishment, the case-handling personnel took the initiative to connect with his unit and work with the leaders of his unit to do Lu's education and transformation work; Through the defense lawyer, he explained to Lu the meaning of admitting guilt and accepting punishment, prompting Lu to change his understanding. After many interpretations of the law and reasoning, Lu's attitude changed, he was willing to admit guilt and accept punishment, and voluntarily signed a plea of guilt and punishment under the witness of a defense lawyer. The procuratorial organ comprehensively considered the facts of the case and Lu's admission of guilt and punishment, and after reaching a consensus with the supervision organ, recommended that leniency be applied to him, and Lu did not appeal after the first-instance judgment.
【Typical significance】
(1) Break the old concept of cracking down on bribery and lightly cracking down on bribery, and ensure that bribery and bribery are investigated together. Supervision organs and procuratorial organs should earnestly implement the "Opinions on Further Promoting the Joint Investigation of Bribery and Bribery," break the one-sided concept that cracking down on bribery is not conducive to bribe-givers cooperating with the collection of evidence and affect the investigation and handling of bribery cases, and focus on investigating and severely punishing those who bribe judicial personnel, disrupt the normal handling of cases, or obstruct judicial justice. Effective judgments such as "false meritorious service" obtained as a result of bribery shall be lawfully performed in accordance with the law and must not be allowed to benefit from the briber.
(2) Strengthen coordination in supervision and inspection, and increase joint efforts to combat bribery crimes. Supervision organs and procuratorial organs should always adhere to the correct political direction, actively take on responsibilities, be good at grasping details, strengthen the comparison of related cases, promptly discover and deeply explore the problems behind bribery cases, and file cases for investigation and punishment, supplementary prosecution, and protests in accordance with law. In the stage of early intervention and follow-up handling, supervision organs and procuratorial organs should take the initiative to strengthen the connection between work. On major issues such as the determination of the facts of bribery and the application of law, it is necessary to strengthen consultation and communication, consolidate the facts and evidence base of the case, and ensure the quality of case handling.
(3) Persist in combining leniency and strictness, prompting criminal suspects and defendants to admit guilt and repent. Procuratorial organs should earnestly listen to the opinions of criminal suspects and defenders, fully explain the law and reasoning, and do a good job of persuasion and education. Actively report back to the Supervision Organs on the situation in the process of handling cases, conscientiously implement the system of leniency in admitting guilt and accepting punishment, implement the criminal policy of combining leniency and severity in the handling of each criminal case, and promote the organic unity of the "three effects".
【Related Regulations】
Articles 67.1, 68, 70, 385.1, 389.1 and 390 of the Criminal Law of the People's Republic of China
Articles 15, 176 and 254 of the Criminal Procedure Law of the People's Republic of China
Article 45 of the Supervision Law of the People's Republic of China