Bribery or joint bribery? Let’s start with the case of Liao Yanqiu, former chairman of Hengyang Municipal People’s Political Consultative Conference in Hunan Province.

Bribery or joint bribery

Let’s start with the case of Liao Yanqiu, former chairman of the Hengyang Municipal People’s Political Consultative Conference of Hunan Province

　　Reporter Fang Yifei

Special Guest

　　Liu Youren Director of the Case Trial Office of the Hunan Provincial Commission for Discipline Inspection and Supervision

　　Pan Mingmin, Level 4 Investigator of the Tenth Review and Investigation Office of the Hunan Provincial Commission for Discipline Inspection and Supervision

　　Guo Liangdan, Second Class Senior Prosecutor, Third Procuratorial Department, Hunan Provincial People’s Procuratorate

　　Tan Qingfeng, Vice President of the Second Criminal Tribunal of Hunan Provincial Higher People’s Court

Editor's note

　　In this case, from 2017 to 2019, Liao Yanqiu lent Hu Moumou 18 million yuan and recovered 2.64 million yuan in interest. Why was he deemed to have violated integrity discipline? The defender pointed out that the accusation that Liao Yanqiu and the driver Tang jointly accepted more than 25.28 million yuan in property from Chen was inconsistent with the facts. Tang and Chen jointly paid bribes. How do you view this defense opinion? We specially invite staff from relevant units to analyze it.

Basic case facts:

　　Liao Yanqiu, male, joined the Communist Party of China in December 1979. He once served as member of the Standing Committee of the Hengyang Municipal Party Committee, Secretary of the Leiyang Municipal Party Committee, member of the Standing Committee of the Hengyang Municipal Party Committee, deputy mayor of the Municipal Government, and Chairman of the Hengyang Municipal People's Political Consultative Conference, Hunan Province.

　　Violation of integrity discipline. From 2017 to 2019, Hu Moumou, the actual controller of a company in Hengyang City, borrowed money from Liao Yanqiu many times due to lack of funds. Liao Yanqiu raised funds from others and lent Hu Moumou a total of 18 million yuan in three installments. The two parties entered into a loan contract , the agreed annual interest rate is 20% or 24%. In March 2020, Liao Yanqiu recovered the principal of 10 million yuan and received interest of 2.64 million yuan. As of the incident, there was still 10.7 million yuan of principal and interest that had not been recovered.

　　Violating mass discipline and acting as a "protective umbrella" for evil forces. In April 2004, Liao Yanqiu helped Xie Moumou, a member of a gangster organization, and others to make more than 10 million yuan in profits from illegal coal mining by greeting Zhou Mou, the then deputy mayor of Leiyang Municipal Government (handled in a separate case).

　　Bribery. From 2003 to 2021, Liao Yanqiu took advantage of the convenience of his position or the convenience created by his authority or status, and through the behavior of other state staff in his position, he sought benefits for multiple units and individuals in land consolidation, special fund allocation, etc. Alone or together with his driver Tang (who has a close relationship with Liao Yanqiu, is Liao Yanqiu's "interest spokesperson" and property custodian, and was sentenced to 12 years in prison for accepting bribes), he received a total of more than 75.93 million yuan in property (including more than 870,000 yuan) Yuan attempted).

　　Among them, in 2017, Tang and Chen, the actual controller of a company in Leiyang, agreed that Chen would provide intermediary services for land integration. If difficulties were encountered in the process, Tang would approach Liao Yanqiu to coordinate. Later, at Tang's request, Liao Yanqiu took advantage of the convenient conditions created by his power and status as chairman of the Hengyang Municipal People's Political Consultative Conference to greet relevant public officials in Leiyang City and facilitated Chen to sign a land integration intermediary service contract with a real estate company and Carry out land consolidation smoothly. Tang Mou obtained intermediary service fees under the guise of cooperating with Chen Moumou to carry out land consolidation, and promised to share the obtained intermediary service fees with Liao Yanqiu. Later, Chen Moumou received more than 40 million yuan in intermediary service fees from a real estate company, and gave more than 25.28 million yuan to Tang Moumou to thank Tang Moumou and Liao Yanqiu. The money was jointly owned by Tang Moumou and Liao Yanqiu.

　　From 2004 to 2010, Liao Yanqiu took advantage of his positions as member of the Standing Committee of the Hengyang Municipal Party Committee, Secretary of the Leiyang Municipal Party Committee, and Deputy Mayor of Hengyang City to provide assistance to Xie Moumou, a member of a gangland organization, in matters such as illegal mining. From 2006 to 2020, Liao Yanqiu received a total of more than 13.83 million yuan in "interest" from Xie in the form of loans and interest collection. Among them, in March 2006, Liao Yanqiu lent Xie 4 million yuan in the name of private business owner Liu XX when Xie had no need for funds, and agreed on a super high "interest". Later, Xie was investigated for gang-related crimes. In order to recover the principal and interest, Liao Yanqiu arranged for Liu to file a civil lawsuit with the People's Court. With Xie's consent and cooperation, Liao Yanqiu obtained Xie's property from the court's judgment in August 2011. After recovering the principal, more than 5.43 million yuan of "interest" was obtained. From 2012 to 2015, Xie needed a large amount of funds for the acquisition and renovation of coal mines. In June 2012, Xie invited Liao Yanqiu to invest. Liao Yanqiu negotiated with Xie through his other driver Zhou Moumou (handling another case) and agreed to lend Xie Moumou 12 million yuan with a monthly interest of 5 cents. From 2013 to 2015, the amount that Liao Yanqiu obtained exceeded the interest rate Xie paid to other unspecified borrowers in the same period was 8.4 million yuan.

Investigation process:

　　[Case review and investigation] On July 3, 2021, the Hunan Provincial Commission for Discipline Inspection and Supervision launched a case review and investigation into Liao Yanqiu's suspected serious violations of disciplines and laws, and took detention measures against Liao Yanqiu on July 9, 2021. On September 13, 2021, the detention period was extended for three months.

　　[Party Discipline and Government Affairs Punishment] On December 31, 2021, after study by the Standing Committee of the Hunan Provincial Commission for Discipline Inspection and approval by the Hunan Provincial Party Committee, it was decided to expel Liao Yanqiu from the party; the Hunan Provincial Supervisory Committee gave him the sanction of expulsion from public office.

　　[Transfer for review and prosecution] On January 5, 2022, the Hunan Provincial Supervisory Committee transferred Liao Yanqiu’s suspected bribery case to the Hunan Provincial People’s Procuratorate. The Hunan Provincial People's Procuratorate designated the Shaoyang City People's Procuratorate to review and prosecute.

　　[Public Prosecution] On March 9, 2022, the Shaoyang Municipal People’s Procuratorate filed a public prosecution with the Shaoyang Intermediate People’s Court on Liao Yanqiu’s suspicion of accepting bribes.

　　[First Instance Judgment] On February 20, 2023, the Shaoyang Intermediate People’s Court convicted Liao Yanqiu of accepting bribes and was sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property. The judgment is now effective.

1 From 2017 to 2019, Liao Yanqiu lent Hu Moumou 18 million yuan and recovered 2.64 million yuan in interest. Why was he deemed to have violated integrity discipline?

　　Pan Mingmin: First, Liao Yanqiu's loan of 18 million yuan to Hu Moumou was not a normal private lending behavior. From the subject point of view, Liao Yanqiu was the chairman of the Hengyang Municipal People's Political Consultative Conference at the time. A company in Hengyang City actually controlled by Hu Moumou was within the jurisdiction of Liao Yanqiu. Liao Yanqiu borrowed money from management and service objects and collected interest, which may have affected the fair execution of official duties. Judging from the results, the interest obtained was 2.64 million yuan, which was a large return, and the two parties made a verbal agreement on the remaining principal and interest of 10.7 million yuan that had not yet been paid.

　　Second, when the two parties entered into the loan contract, they did not have any subjective intention or objective behavior to accept bribes. This does not meet the essential characteristics of "power-for-money transactions" and should not be characterized as bribery. First, there is no criminal connection between Liao Yanqiu and Hu Moumou for transferring interests in the name of loan interest collection, and there is no corresponding profit-making matter. Liao Yanqiu's real idea was to engage in profit-making activities by borrowing and collecting interest. The income obtained was "financial consideration" and not "power consideration". Both parties did not intend to accept bribes. Second, Hu Moumou was short of funds at the time and had a real need for borrowing. According to Hu Moumou's account, due to a shortage of funds, he took the initiative to borrow money from Liao Yanqiu. During the same period, he also borrowed money from other unspecified persons, and the interest rate of the loan to Liao Yanqiu did not exceed that of other unspecified persons. After investigation, Hu Moumou needed a large amount of funds after investing in a real estate project, and the loan funds directly flowed into the project company's account for real estate development. Third, Liao Yanqiu's loan funds did not give priority to Hu Moumou's other borrowers in receiving repayment guarantees, and he actually bore the risk of unrecovering the principal and part of the interest.

　　To sum up, Liao Yanqiu borrowed money from Hu Moumou to collect interest and made a profit of 2.64 million yuan, which may affect the fair execution of official duties and essentially violate the integrity of his official behavior. According to Article 90 of the 2018 "Regulations on Disciplinary Punishments of the Communist Party of China", those who obtain large returns through private lending and other financial activities and affect the fair execution of official duties shall be classified as violating integrity disciplines.

2 The defender pointed out that the accusation that Liao Yanqiu and the driver Tang jointly accepted more than 25.28 million yuan in property from Chen was inconsistent with the facts. Tang and Chen jointly paid bribes. How do you view this defense opinion?

　　Guo Liangdan: The defender’s suggestion that Tang and Chen jointly paid bribes is inconsistent with the facts and will not be supported by the prosecution. According to the evidence in the case, in 2017, because Tang had a close relationship with Liao Yanqiu and was worried that his provision of intermediary services would have a negative impact on Liao Yanqiu, he agreed with Chen that Chen would provide intermediary services for land consolidation. If there are difficulties during the process, Tang will ask Liao Yanqiu to coordinate. Afterwards, Tang conveyed Chen’s request to Liao Yanqiu. The more than 25.28 million yuan received by Tang was a "favorable fee" that Liao Yanqiu used his position to help Chen Moumou smoothly carry out land consolidation. Moreover, Tang had a close relationship with Liao Yanqiu and was his specific related person. He and Liao Yanqiu jointly owned the more than 25.28 million yuan. Therefore, Tang and Chen did not constitute joint bribery.

　　According to the "Opinions on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Bribery" of the "Two Highs and Highs", persons with specific relationships conspire with state functionaries, and state functionaries take advantage of their positions to seek benefits for the entrusted person, instructing the entrusted person to transfer the relevant If property is given to a person with a specific relationship, the state functionary and the person with the specific relationship are guilty of jointly accepting bribes.

　　In this case, Tang and Liao Yanqiu constituted joint bribery for the following reasons: First, Tang and Liao Yanqiu were persons with specific relationships, and they formed a community of interests. Tang has been Liao Yanqiu's driver for many years and is deeply trusted by him. Liao Yanqiu not only handed over his disciplinary and illegal gains to Tang for safekeeping for a long time, but also authorized Tang to jointly invest their funds in external investments. It can be seen that Tang is not only Liao Yanqiu's "money bag" and property custodian, but also Liao Yanqiu's "interest spokesperson". Both parties benefit and lose. Second, the two had a common intention to accept bribes. The reason why Tang conveyed the request and actively pushed Chen to sign a land integration intermediary service contract with a real estate company was to cash in on Liao Yanqiu's official behavior, which was essentially a power-for-money transaction. Liao Yanqiu knew this, and the two of them had colluded to accept bribes. Third, objectively speaking, the two men worked together to complete the bribery act. In order to deceive others and avoid risks, one of the two parties hid behind the scenes and the other cooperated in front of the stage. In the specific implementation, Tang negotiated the terms with Chen and others in front of the stage and agreed on a "facilitation fee"; while Liao Yanqiu hid behind the scenes and took advantage of his power. Greet relevant public officials and smooth the relationship. During this process, Tang continued to inform Liao Yanqiu of the status of the front-stage negotiations, such as the amount of "favorable fees", etc., and Liao Yanqiu decided and controlled the pace of using his authority to provide help. The two responded internally and externally and jointly completed the bribery act. Fourth, the two jointly possessed the bribe money. With the help of Liao Yanqiu and Tang, Chen signed a contract with a real estate company, successfully completed the land integration, and received more than 40 million yuan in intermediary service fees, of which more than 25.28 million yuan in "benefit fees" were given to Tang as a thank you. Liao Yanqiu and Tang. Based on the aforementioned common interest relationship between Liao Yanqiu and Tang, the specific distribution between them will not affect the determination of joint bribery. The procuratorial organ prosecuted the fact that Liao Yanqiu and Tang jointly accepted more than 25.28 million yuan in bribes, which was supported by the court's judgment. Currently, Tang has been sentenced to twelve years in prison for taking bribes.

3. Liao Yanqiu lent Xie 12 million yuan and obtained an amount exceeding Xie's interest rate for other unspecified borrowers in the same period, which was 8.4 million yuan. Does this constitute bribery?

　　Liu Youren: Party members and cadres take advantage of their positions to seek benefits for others and accept property by borrowing and collecting interest, which is a relatively covert crime of bribery. The perpetrators usually use private loans as a cover in an attempt to evade legal punishment. The essence of the behavior should be explored through the appearance, focusing on whether the act of collecting interest on loans is related to the job, whether the interest income requested or obtained is related and valuable to the profit-seeking behavior, whether it is an improper remuneration for the profit-seeking behavior, and whether it is an infringement. The integrity and non-bribability of the position, etc.

　　In this case, from 2012 to 2015, Xie Moumou needed a large amount of funds for the acquisition and renovation of coal mines and other matters. In June 2012, Xie Moumou invited Liao Yanqiu to invest. Liao Yanqiu negotiated with Xie through his driver Zhou and agreed to lend Xie 12 million yuan with a monthly interest of 5 cents. From 2013 to 2015, the amount that Liao Yanqiu obtained exceeded the interest rate Xie paid to other unspecified borrowers in the same period was 8.4 million yuan. This loan has the essential characteristics of a power-for-money transaction for the following reasons:

　　First, Liao Yanqiu took advantage of his position to seek benefits for Xie Moumou. After investigation, from 2004 to 2010, Liao Yanqiu accepted Xie's request and took advantage of his position as member of the Standing Committee of the Hengyang Municipal Party Committee, Secretary of the Leiyang Municipal Party Committee, and Deputy Mayor of Hengyang City to provide assistance to Xie on matters such as illegal mining. The second is that both parties have the subjective intention to accept bribes. According to Xie's explanation, the reason why he was willing to pay high interest was to thank Liao Yanqiu for his previous duties and to hope to continue to receive Liao Yanqiu's care. Liao Yanqiu knew this very well, and the two reached an agreement to accept bribes.

　　Regarding the determination of the amount of the crime, if the benefits obtained by borrowing and collecting interest are used as consideration for power, it should be deemed as bribery. In practice, different situations should be distinguished to determine the amount of bribery: First, the interest collected on loans where the borrower has no financial needs should be determined in full as the amount of bribery. If a state employee takes advantage of his position to seek benefits for others and collect interest from others for loans, but the other person has no actual need for funds at all, the full amount of the interest should be deemed as the amount of bribery. Second, if the borrower does have financial needs, but the interest earned by state workers is significantly higher than that of other unspecified loan recipients, according to the guiding spirit of the Shen Bribery Case No. 1447 of the "Criminal Trial Reference", the difference can be determined as bribery. amount. That is, state workers take advantage of their positions to seek benefits for others and borrow money from others to collect interest. The borrower does have financial needs, but the interest earned by state workers is higher than that of other borrowers in the same period. Generally, it will significantly exceed Part of it was determined to be the amount of bribes received.

　　In this case, Xie Moumou borrowed 12 million yuan from Liao Yanqiu with an agreed monthly interest of 5 cents. After investigation, although Xie Moumou had a need for borrowing, the interest rate given to other unspecified borrowers in the same period was significantly lower, so the interest rate should be significantly higher than that of Liao Yanqiu. The difference between the interest rates of other unspecified loan objects was determined to be 8.4 million yuan in bribes.

4 The defender accused Liao Yanqiu of accepting more than 13.83 million yuan from Xie Moumou, of which more than 5.43 million yuan was obtained through civil litigation and should not be regarded as bribery. How do you view this defense opinion? What considerations did the court take into consideration when sentencing this case?

　　Tan Qingfeng: The defender’s above defense opinion cannot be established and the court will not support it. The reasons are as follows:

　　First, judging from the nature of the loan relationship between the two parties, according to Liao Yanqiu's confession and the testimony of Xie XX and others, in 2006, Liao Yanqiu saw that Xie XX was in good financial condition and offered to lend 4 million yuan in the name of Liu XX. Xie Moumou asked for high returns. In order to express his gratitude and continue to seek help from Liao Yanqiu, Xie Moumou agreed to borrow money and gave Liao Yanqiu super high "interest". It can be seen that the financial relationship between Liao Yanqiu and Xie Moumou is, on the surface, a private loan, but in essence it is a bribery relationship involving power and money transactions.

　　Second, regarding the determination of the amount of bribes accepted. According to the evidence in the case, Xie's coal mine was in good operating and economic condition at the time and had no need for borrowing. Liao Yanqiu took the initiative to "lend" money to Xie despite knowing this situation, with the purpose of asking Xie for a high amount of money. The so-called "borrowing money and collecting interest" is a cover to cover up bribery. Therefore, the interest of more than 5.43 million yuan that Liao Yanqiu received from Xie should be regarded as the amount of bribery.

　　Third, judging from the process of Xie Moumou paying Liao Yanqiu’s loan principal of 4 million yuan and interest of more than 5.43 million yuan, the two parties had reached an agreement to accept bribes before Xie Moumou was detained for gang-related crimes. After Xie Moumou was detained, , whose property was frozen. In order to recover the principal and interest of the "loan" and obtain the illegal benefits conveyed by Xie, Liao Yanqiu instructed Liu to visit the prison and asked Xie to conceal the truth about the transfer of interests between him and Liao Yanqiu. With the cooperation of Xie, Liu A civil lawsuit was filed with the People's Court. Based on the evidence provided by the parties, the People's Court ruled that Xie should pay a principal of 4 million yuan and an interest of more than 5.43 million yuan, and then executed it from Xie's seized property by applying for execution. The relevant principal and interest belong to Liao Yanqiu. Liao Yanqiu's civil litigation was only a legal way to cover up the transfer of interests to him and the essence of the power-for-money transaction between the two. The more than 5.43 million yuan that Liao Yanqiu obtained through loan interest collection should be included in the amount of bribes accepted. .

　　According to the provisions of the Criminal Law and the "Interpretations of Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery" of the "two highs and highs", if the amount of bribes exceeds 3 million yuan, it shall be deemed as "the first paragraph of Article 383 of the Criminal Law". "If the amount is particularly huge", he shall be sentenced to fixed-term imprisonment of more than ten years, life imprisonment or death in accordance with the law. In this case, Liao Yanqiu accepted a total of more than 75.93 million yuan in bribes. The amount of bribes he accepted was particularly huge and he should be sentenced to more than ten years in prison or life imprisonment. Liao Yanqiu is the "protective umbrella" of the evil forces and should be severely punished in accordance with the law. Based on the facts, nature, circumstances and harm to society of Liao Yanqiu's crime, the public prosecution agency proposed a sentencing recommendation of life imprisonment and confiscation of all personal property. Liao Yanqiu voluntarily pleaded guilty and accepted punishment. The court considered all the sentencing circumstances of Liao Yanqiu and believed that the sentencing recommendations put forward by the public prosecution were in compliance with the law. According to law, Liao Yanqiu was sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property. Liao Yanqiu pleaded guilty and accepted the sentence. (China Discipline Inspection and Supervision News)