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How to identify embezzlement of epidemic prevention and daily support supplies
1. Basic case facts
March 2022,A certain street office in a certain district of S City is based on the deployment of superiors,Establish a street nucleic acid screening and regional control headquarters and working group,Responsible for regional nucleic acid screening and regional control work。The working group staff by phone、 Determine apartments in the area through WeChat and other methods、The person in charge of shops and other units is responsible for the work related to the prevention and control of the new crown epidemic in their unit。 Zhang Moumou is the person in charge of an apartment,Responsible for the closed management of the apartment during the epidemic prevention and control period、Receipt and distribution of epidemic prevention support materials、Nucleic acid screening and other work,For the purpose of illegal possession,Alone or together with others, embezzle the epidemic prevention and daily support materials entrusted by the street,Total value 1.more than 30,000 yuan。
2. Case Analysis
In this case,There are three opinions on how to characterize Zhang Moumou’s behavior。 The first opinion is that Zhang Moumou constitutes the crime of job embezzlement。Zhang Moumou is the person in charge of the apartment,Distribution of epidemic prevention and living support materials、Delivery has a series of powers,Convenience due to position,In the process of receiving and distributing materials,The materials are legally possessed by the apartment,Can be recognized as “property of this unit”。Zhang Moumou took advantage of his position to embezzle the property of his unit,If it reaches “larger amount”,Consisting the crime of job embezzlement。The second opinion is that Zhang Moumou constitutes the crime of theft。Epidemic prevention and living support materials are distributed by the government to apartment residents,Owned by apartment residents after delivery。Zhang Moumou does not have the status of a state worker,It distributes materials but does not actually possess them,The actual owner of the materials is the resident of the apartment。Zhang Moumou embezzled、 The act of reselling materials is to deprive others of their possession for the purpose of illegal possession,Consisting the crime of theft。The third opinion is that Zhang Moumou is guilty of corruption。Zhang Moumou is a person entrusted by state agencies to manage state-owned property,Its use is received、The job of distributing supplies facilitates the embezzlement of state-owned property used for epidemic prevention and life support,Consisting the crime of corruption。The author agrees with the third opinion。
3. Commentary on the Discipline
According to the second paragraph of Article 382 of the Criminal Law,Subject to state agencies、State-owned company、Enterprise、Public institution、Entrusted management by people’s organizations、Personnel operating state-owned property,Use the convenience of your position,Embezzlement、Steal、Defrauding or illegally possessing state-owned property by other means,On the basis of corruption。 (1) From the perspective of property properties,The epidemic prevention support materials involved in the case should be recognized as state-owned property during the special period of epidemic prevention and control,The government protects the living needs of residents in the region,Provide free supply supplies to residents in the jurisdiction,The materials involved in the case were owned by the state before they were delivered to the apartment residents,After delivery, it becomes the personal property of the apartment resident。The apartment is not the recipient of the materials involved in the case,Not the owner or actual possessor of the materials from beginning to end,There is no factual basis for determining that Zhang Moumou is suspected of official embezzlement。(2) From the perspective of subject identity,Zhang Moumou should be recognized as a person entrusted by state agencies to manage state-owned property first,Zhang Moumou was entrusted by a certain street。Zhang Moumou is the person in charge of the apartment,Daily work is responsible for tenant management of the apartment、Firefighting、Safety inspection, etc.。 During the epidemic prevention and control period,Based on Zhang Moumou’s previous job responsibilities,A certain street by telephone、Leave the work related to epidemic prevention and control to Zhang Moumou through WeChat and other methods, Includes apartment closure management、Tissue nucleic acid detection、Receipt and distribution of epidemic prevention support materials, etc.。Although there is no power of attorney in the above process、Contract and other written materials,But Zhang Moumou clearly knew that he was carrying out epidemic prevention and control work in accordance with the government’s instructions, In fact, various tasks assigned by the government have been implemented,Its acquisition includes reception、 Safety、Assignment、The authority and responsibilities of a series of epidemic prevention work, including the distribution of supplies, come from the authority and entrustment of the government。The lack of formal requirements does not affect the determination that Zhang Moumou was entrusted by the government to carry out the work。 Secondly,Receive、The distribution of materials can be regarded as the management of state-owned property。Zhang’s job responsibility is to receive orders entrusted by state agencies、Distribution of epidemic prevention and living security supplies,In the process of performing their duties, they need to reasonably organize manpower to receive materials、 Safety、Assignment、Delivery and other activities,And make corresponding decisions、Arrangement,The above process can be regarded as the management of state-owned property。 In summary,Zhang Moumou complies with the provisions of paragraph 2 of Article 382 of the Criminal Law regarding persons entrusted by state agencies to manage state-owned property,Having the status of a state worker under the criminal law,Conforming to the main characteristics of the crime of corruption。 (3) From the perspective of behavioral characteristics,Zhang Moumou took advantage of his position to embezzle specific money and property. Zhang Moumou was entrusted by the state agency to Sky bet sports betting APP distribute epidemic prevention and living sky bet online casino support materials,He clearly knows that the materials distributed by the government are for the living needs of apartment residents,But for the purpose of illegal possession,Use the convenience of your position to convert the materials distributed by state agencies to specific objects into your own,It is a typical act of embezzling state-owned property,His behavior is suspected of corruption,Does not meet the requirements for the crime of theft。Zhang Moumou’s criminal behavior violated the ownership of state-owned property,Compromising the integrity of supply operations,Severely disrupted the order of epidemic prevention and control。According to relevant judicial interpretation,The amount of corruption is more than 10,000 yuan but less than 30,000 yuan,If it is corruption and disaster relief、Immigration、Flood prevention、Preferential care、Poverty Alleviation、Immigration、Relief、Epidemic Prevention、Special funds and materials such as social donations,Should be determined as “other serious circumstances” stipulated in the first paragraph of Article 383 of the Criminal Law,Sentence to fixed-term imprisonment of not more than three years or criminal detention,Concurrent fines。This case is in progress,Zhang Moumou embezzled specific epidemic prevention funds,Value 1.more than 30,000 yuan,Should be considered as “other serious circumstances”。 In summary,Zhang Moumou is a person entrusted by state agencies to manage state-owned property,Using the convenience of his position to embezzle specific state-owned property used for epidemic prevention and life support,There are other serious circumstances,Should be punished for corruption。 (Selected from the website of the Central Commission for Discipline Inspection and the State Supervision Commission)
How to characterize public officials who defraud money and keep it for themselves
1. Basic case facts
Case 1: February to December 2021,Policeman Tong handles A、B is suspected of co-production、When selling fake medicine,In the process of recovering the stolen money,Confiscating illegal profits (verified profit of NT$120,000)、Multiple requests for reasons such as sales amount or change of charges A 、B’s family members will return the stolen goods on their behalf,It is also claimed that more refunds and more compensation will result in a lighter punishment; The families of the two people successively paid a total of 380,000 yuan to Tong Mou,Tong issued a set seizure list outside the law enforcement case handling system for his family members to sign。The proceeds were used by Tong to repay his personal credit card、Daily consumption。 Case 2: May to August 2021,Police officer Xin investigated C as suspected of fraud but failed to verify it,accidentally discovered that C’s bank card account balance is more than 300,000 yuan, Falsely claiming that there are too many funds in the account and the source is unknown,Possibly illegal gains,Need to be detained first,Refund after verification,And create a false list of accepted items;C believes it to be true,Sign the list and transfer 300,000 yuan to Xin’s bank account;After C asked many questions,Xin excused himself on the grounds that the matter had not yet been clarified。Xin used the proceeds for personal consumption。
2. Case Analysis
Regarding Tong in the above case、How to characterize Xin’s behavior,There are three different opinions。 The first opinion is that,Tong、Xin used it to handle related work matters or cases、Position convenience for managing the property involved,Making up reasons to defraud the public funds handed over,Infringement of public property ownership and official integrity,Both constitute fraudulent corruption。The second opinion,Tong、Xin takes advantage of the convenience of work,Fictional facts、Concealing the truth,Let the other party fall into misunderstanding and dispose of property, And the property has not been handed over to the public account and is not under the control of the unit,Not public funds,Both constitute fraud。The third opinion,Tong took advantage of the case to return the stolen money and fabricated a reason to let the suspect return more of the stolen money to himself,After receiving the money, it should be paid to the public or not,Consisting embezzlement and corruption。Xin’s fraudulent behavior has nothing to do with his position,The money received has nothing to do with the unit,It defrauds others of their private property,Should constitute fraud。The author agrees with the third opinion。
3. Commentary on the Discipline
Public officials defrauded money and took it for themselves,May have committed corruption or fraud crimes,There is controversy over how to characterize it。Combined cases,The analysis is as follows: (1) Examine whether there is any use of position to facilitate the crime. The basic structures of fraud and fraudulent corruption are consistent,Subjectively, the purpose is illegal possession,Objectively, deception methods can be used,Cause the defrauded person who has the right to dispose of the property to create or continue to maintain a wrong understanding and dispose of the property。The special thing is the subject of the fraud、Object、Method、Object and other differences,Among them,The most essential difference is whether or not one takes advantage of one’s position during the fraud,The crime of corruption objectively requires that the perpetrator must use his position to become a supervisor、Management、The power and convenience to handle public property, There is no such requirement for the crime of fraud。 Case 1,Tong serves as the person in charge of criminal cases,Recovering stolen goods and reversing losses is the responsibility of case handling,How to recover stolen goods,Tong has certain decision-making and disposal rights。It is based on this responsibility,Only those who are qualified to commit deception in handling property,If you don’t take advantage of this convenience,The purpose of embezzlement cannot be achieved。As for whether asking family members to return more stolen money is beyond the scope of their duties,The author thinks it is not exceeded,The case was supposed to return the stolen goods,Leave this case aside,Sometimes there are cases where more stolen money is returned to compensate for the victim’s losses,Not limited to illegal profits,Especially joint crime cases;Tong’s behavior is consistent,They are sky bet online casino all objective behaviors under the intentional Sky bet sports betting APP control of illegal possession,Should be regarded as a unit for performance of duties,Should not be artificially divided。Case 2 Medium,Illegal acts are not found out,Illegal gains are out of the question;Xin carried out false “detention” with completely fictitious “illegal gains”,Purely a personal behavior that has nothing to do with the position。(2) Determine whether it constitutes fraud,Focus on whether the payer has fallen into a misunderstanding, Case 1,There are real cases,Tong is indeed a police officer,The case itself needs to return the stolen goods,These prerequisites are not fictitious。The perpetrators of such cases have certain knowledge of illegal profits and compensation to victims after the incident,As for how to return stolen goods、How much money will be returned、Should you withdraw?,The perpetrator generally has little understanding and will not question it。Tong requested A、B’s return of stolen goods is legitimate and reasonable,Although part of the reason contains elements of deception,But it is not enough to make them fall into misunderstanding,The main factor that prompted them to be willing to deliver the property was based on the real case basis,Returning the stolen goods is their legal obligation。Therefore,Tong does not meet the appropriateness conditions that constitute the crime of fraud,Does not constitute a crime of fraud。And case two,The basis of the case does not exist,Xin can succeed,Mainly using C’s trust in the police。 (3) Examine whether the crime object is public property Case 1,Tong took advantage of his position in handling the case,Representing the public security agency to force the parties to return the stolen property,Formally consistent with the legal method of acquiring national public property,The parties believe that there is reason to believe that it was collected by the state,The legal consequences will ultimately be borne by the unit,These public properties do not require Tong’s control of the property to be legal,Not based on whether it has been handed over to the unit’s public accounts。It needs to be pointed out,Not any public property can become an object of corruption,The relationship between taking advantage of one’s position and public property is not a simple additive one,And intrinsically related,Only when a public official takes advantage of his position to occupy public property (not private property),Or have the right to control public property based on their position、Right of decision,Or in leadership of those who have specific control over property、Instructions、Dominance,Only before it can be determined as corruption。Obviously,Case 2, Xin’s deceptive behavior did not take advantage of his position,The money defrauded is not public property,Should be punished as fraud。(Selected from the website of the Central Commission for Discipline Inspection and the State Supervision Commission)
How to infer that Sun knowingly falsified his academic qualifications
1. Basic case facts
Sun,Male,Member of the Communist Party of China,Deputy Director of the Propaganda Department of Provincial Department of Water Resources。1998,Sun passed the civil service examination,Admitted to the Department of Water Resources of Province A with a college degree。2004,Sun registered through social worker Ding、Payment,Participated in correspondence undergraduate study at University B,Obtained the graduation certificate and student registration booklet of University B through Ding in 2007。2010,The Department of Water Resources organizes a competition for the position of deputy director-level leading cadres,The educational requirement is a bachelor degree or above。Sun signed up to participate in this competition,Later successfully competed for the position of Deputy Director of the Publicity Department。2019,The Department of Water Resources organizes academic degree comparison work,Sun’s graduation certificate was deemed “forged”,The clues about Sun’s problem were handed over to the Discipline Inspection and Supervision Team in the office。In the process of verification by the Discipline Inspection and Supervision Team in the office,Sun said he was cheated,I don’t know that the graduation certificate is fake。At the same time,The Discipline Inspection and Supervision Team in the Office also discovered,Sun did not take the entrance examination、Never met the school teacher、Failure to participate in the course final exam and many other doubts。
2. Case Analysis
In this case,Differences arose over whether Sun constituted a disciplinary violation。 The first opinion is that Sun’s behavior does not constitute a disciplinary violation。Sun himself is the “deceived person”,He did not know that the graduation certificate was forged,Although Sun used fake academic qualifications to make money,However, the principle of unifying subjectivity and objectivity should be adhered to when determining disciplinary violations,Sun subjectively did not violate discipline intentionally,To avoid objective errors,Sun should not be deemed to have committed a disciplinary violation。 The second opinion is that Sun’s behavior constitutes a disciplinary violation。Although Sun claimed that he did not know that the diploma was forged,But there are many doubts in the process of obtaining the diploma,Sun cannot give a reasonable explanation,And according to the judgment standards of normal people,Should be able to realize that the diploma is a forgery,So it is presumed that Sun knew this。In addition, Sun has the plot to use fake academic qualifications to make money,It should be determined that it constitutes a disciplinary violation。The author agrees with the second opinion。
3. Commentary on the Discipline
(1) The concept of presumed knowledge and its application in judicial practice Presumed knowledge is a term in criminal law。The subjective aspect of crime is divided into cognitive factors and will factors,The cognitive factor of intentional crime is “knowledge”。Article 14 of the Criminal Law,Intentional crime must be based on knowing knowledge。But how to determine and conclude knowing,It’s a more complicated question。In litigation activities,Crime suspects rarely admit that they have knowledge,In most cases, they will not tell the truth about their psychological activities。Thus the presumption of knowledge arises,That is, making a judgment about the existence of another fact based on the existence of a certain fact (basic fact),At the same time, give the other party full rebuttal rights Sky bet football to overturn the presumption,Thus ensuring Sky bet online sports betting APP download the objectivity of the presumption。The subjective aspect of crime is the psychological basis that governs criminal behavior,And show it through objective behavior。Therefore,Start from objective behavior,Analyze the subjective psychology of the perpetrator,Is the key to presumed knowledge。In practice,Objective behavior is often expressed as the object of the behavior、Means and methods、Process、Conditions and other contents。In the process of inference,Pay attention to collecting basic facts related to objective behavior,It is inferred that the perpetrator has subjective knowledge through basic facts,Then reverse the burden of proof,The actor makes a reasonable explanation of the basic facts,If the perpetrator cannot give a reasonable explanation,It is presumed that he has subjective knowledge。In addition,We should also grasp the objective standards for judging knowingness,The author thinks,We should adhere to the principle of unity of subjectivity and objectivity,We must consider the specific circumstances when the case occurred,That is, based on general experience and common sense under the prevailing conditions,Do ordinary people have clear knowledge;At the same time,The perpetrator’s own cognitive ability must also be considered,such as age、Knowledge level、Social experience and other factors。 The application of presumed knowledge in criminal cases is not uncommon。Take money laundering crime as an example,March 2021,Supreme People’s Procuratorate、The Zhao money laundering case among the 6 typical cases of punishing money laundering crimes jointly released by the People's Bank of China,Used the presumption of knowing。2018,The public security agency transferred Zhao for prosecution on suspicion of money laundering 2 million yuan。Procuratorate discovered,The 2 million yuan is the amount that Wu Mou, a duty criminal, clearly informed Zhao about the source of the money。Before and after,Wu made many other transfers to Zhao,Total more than 10 million yuan,Wu did not disclose the source of the money to Zhao、 Zhao also denied knowing the nature of the money,But the source of funds、Transfer method、The purpose is the same as the above 2 million yuan,Possibly suspected of money laundering crimes。Later, the public security agency will supplement the certificate,Retrieved Wu’s salary income、Real estate situation,Wu Mou、Evidence of Zhao’s employment experience and the relationship between the two。Passed supplementary certificate,The prosecution believes, Zhao is a close relative of Wu,You should have a general understanding of Wu’s illegal gains obtained through corruption and bribery,It should be presumed that he knew that the more than 10 million yuan received using his bank account clearly exceeded Wu’s legitimate income,Proceeds from corruption and bribery。The procuratorate later prosecuted Zhao for money laundering of more than 12 million yuan,And approved by the court。This case is when Zhao denied knowing the nature of the money of more than 10 million yuan,By collecting basic facts,It is presumed that Zhao knew that the more than 10 million yuan was the specific application of the proceeds from corruption and bribery。 (2) Based on Sun’s objective behavior, it can be presumed that he has knowledge of the fake academic qualifications. Although the Party Disciplinary Punishment Regulations do not stipulate the concept of presumed knowledge,However, this method of verifying whether the perpetrator has the intention to violate discipline is also applicable to disciplinary cases。Combined with this case,Verified by the Discipline Inspection and Supervision Team of the Office,The following basic facts exist: First, Sun has never participated in the correspondence undergraduate entrance examination;The second is that Sun claimed to have conducted self-study,But have not participated in any courses organized by the school,Have not taken the final exam for each course;Third, Sun only took the exam once,That is, Ding will transfer the test paper to Sun,Opened book exam by Sun himself,I then received my diploma;Fourthly, the exam results column in the "Graduate Registration and Appraisal Form" obtained by Sun did not fill in the course results;The fifth is that the "Graduate Registration and Appraisal Form" shows that a total of 14 courses have been studied,But the "Graduation Degree Certificate" shows: "Completed 15 subjects of professional university examination",There is a contradiction in the number of courses。 In view of the above basic facts,The Discipline Inspection and Supervision Team in the office requires Sun to give a reasonable explanation,But Sun was unable to provide a reasonable explanation for the above-mentioned “abnormal problems”。At the same time,Combined with objective standards for judging knowing,That is, based on general experience and common sense under the conditions at the time,Most people can realize that there are problems with the above academic qualifications。Pass the above basic facts to be “cross-examined” between the discipline inspection and supervision team in the office and the person under review,It can be inferred that Sun should know that the correspondence undergraduate degree he obtained is a fake degree。Afterwards,Sun used the fake academic qualifications to successfully compete for deputy director,Has profitable plot,According to the provisions of the Party Disciplinary Punishment Regulations,Sun’s behavior constitutes a disciplinary violation。 (Selected from the website of the Central Commission for Discipline Inspection and the State Supervision Commission)
How to identify the behavior of accepting IOUs
1. Basic case facts
Tang is the former Party Committee Secretary of a county’s Housing and Urban-Rural Development Bureau、Director。2015,Tang takes advantage of his position,The real estate project developed for a certain real estate developer Zhang is under construction approval、Quality Supervision、Complete Acceptance、Provide care in aspects such as pre-sale approval。January 2016,Tang took the opportunity to ask Zhang for 211.50,000 yuan,Zhang agreed and paid cash on the spot11.50,000 yuan to Tang。At the same time,Zhang expressed that he was short of funds,Willing to issue an IOU to Tang,State the loan amount of 2 million yuan、 Monthly interest rate 2%,Tang agreed and accepted the IOU。November 2017,Tang asked Zhang for money on the grounds that he needed money urgently,Zhang said that he has been short of funds recently,sky bet online sports betting Proposed to pay interest of 560,000 yuan Sky bet sports betting APP in advance and hinted that Tang would care about the project,Tang agrees, Later Zhang transferred 560,000 yuan to Tang’s bank account。As of October 2021, Tang will be detained on suspicion of serious violations of disciplines and laws,Zhang has not yet given 2 million yuan to Tang。
2. Case Analysis
In the above case,Tang accepts Zhang 11.There is no objection that 50,000 yuan constitutes bribery,But does accepting IOUs and interest constitute bribery,And the amount of bribes、 There are disputes over issues such as the form of crime。 The first opinion is that: According to the provisions of Article 385 of the Criminal Law,The object of the crime of bribery is “property”,IOUs are not “property”,Therefore, Tang’s behavior of accepting IOUs is not bribery。The second opinion is that relevant judicial interpretations stipulate that “property” in the crime of bribery includes property interests,Therefore, setting up debts can become the target of the crime of bribery,Tang accepted a 2 million yuan IOU issued by Zhang,The crime of accepting bribes has been completed。The interest of 560,000 yuan that Tang received from Zhang was the interest obtained from the bribe of 2 million yuan,Not included in the amount of bribes,But shall be confiscated。The third opinion is that Tang’s acceptance of a 2 million yuan IOU should be deemed as bribery,The reason is the same as the second opinion。But due to the incident,The power-money transaction has not actually been completed,Attempted bribery。Tang’s acceptance of the 560,000 yuan paid by Zhang was essentially another bribery,Should be included in the amount of bribes。The author agrees with the third opinion。
3. Commentary on the Discipline
(1) IOUs can become the target of the crime of bribery. In 2016, the "Two High and High People's Government" "Interpretations on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery" stipulates: "'Property' in the crime of bribery", Include currency、Items and property interests。Property interests include material interests that can be converted into currency such as house decoration、Debt relief, etc.,And other benefits such as membership services that require payment of currency、Travel, etc.。The latter’s crime amount,Calculated based on the actual amount paid or payable。”Generally speaking,IOU is the evidence of creditor-debt relationship,But in this case,Tang took advantage of his position to seek benefits for Zhang,There was no creditor-debt relationship between the two people,Tang asked Zhang for money,The IOU issued by Zhang is actually a contract promising to give Tang 2 million yuan。In other words, it is the claim set by Zhang for Tang,Tang can use this IOU to ask for money from Zhang in the future,Should be recognized as “property interests”,It is the “property” in the crime of bribery。Therefore,Tang’s behavior of accepting IOUs constitutes the crime of accepting bribes。 (2) Accepting an IOU but not receiving the payment should be deemed as attempted bribery. The essence of bribery is a transaction of power and money,Tong said that,The standard for distinguishing completed and attempted bribes is whether the bribe recipient actually obtained or controlled the property。According to Article 23 of the Criminal Law: “Has begun to commit a crime,Failed to succeed due to reasons other than the will of the criminal,It is an attempted crime。”In this case,Tang asked Zhang for 211 on the grounds that he had provided care before.50,000 yuan,Zhang agreed and paid in advance11.50,000 yuan,It can be concluded that Tang has already begun to solicit bribes,And 11 has been requested.50,000 yuan bribe。Zhang issued an IOU for the remaining 2 million yuan,Therefore, Tang did not actually receive 2 million yuan,I just have the right to claim Zhang’s 2 million yuan debt,It is still uncertain whether the debt can be realized。Tang has not yet asked Zhang for the 2 million yuan,Can’t succeed because of the crime,For reasons other than his will,Therefore,According to Article 23 of the Criminal Law,For the 2 million yuan Tang Mou was an attempted briber。 (3) The acceptance of “interest” of 560,000 yuan should be included in the amount of bribery. There is a view that,The 560,000 yuan that Tang received from Zhang was the interest on the loan of 2 million yuan,According to the modesty principle of criminal law, it is not appropriate to make an expansionary interpretation,Should not be included in the amount of bribes,Should be confiscated as interest obtained from crime。The author thinks, Loan interest is legal interest,Subject to the existence of a legal lending relationship。This case is in progress,Tang actually did not lend 2 million yuan to Zhang;Although Zhang issued a 2 million yuan IOU to Tang,But because it is for the illegal purpose of bribery,It is a debt that is not protected by law。Therefore,There is no legal basis for believing that NT$560,000 is the interest of a NT$2 million “loan”。The essence of bribery is the transaction of power and money,When Tang signed an IOU with Zhang in January 2016,Subjectively, the amount to be accepted is 2 million yuan,The agreed interest is expressed in the form of lending to cover up the fact of receiving money,But in November 2017, when he asked Zhang for money,After discussion between Tang and Zhang,The two men’s criminal intentions have changed,Subjectively, Tang not only wants to continue to receive 2 million yuan,Also has the intention to demand a bribe of 560,000 yuan in so-called interest,Zhang wants to get Tang’s continued care,Actually, another bribe was paid in the name of paying loan interest,The two reached an agreement to accept bribes。Tang asked for and accepted the 560,000 yuan "interest" paid by Zhang, which is essentially an extension of the money transaction between the two,This is the consideration for Tang taking advantage of his position to seek benefits for Zhang,Comply with the criminal elements of Article 385 of the Criminal Law regarding the crime of accepting bribes,Should be included in the amount of bribes。 (Selected from the website of the Central Commission for Discipline Inspection and the State Supervision Commission)
Does using one’s authority to purchase original shares for profit constitute bribery
1. Basic case facts
A is a national staff member of a provincial regulatory bureau of the China Securities Regulatory Commission,Have served as a member of the Main sky bet online casino Board Issuance Review Committee for many times,Series B private business owners。August 2015,B is Sky bet football preparing to list the company,Meet A through the introduction of others。To get help from A,B informs A,The original shares can be transferred at a price of 10 yuan per share (the transfer price is relatively reasonable),A agrees to purchase and pay the share transfer fee of 1 million yuan to B through a third party,The shares are held by a third party。June 2016,Company B submits application materials for listing and issuance to the China Securities Regulatory Commission,Before and throughout the process,A has provided “IPO guidance” to B many times,At the same time, take advantage of the position of a member of the issuance review committee,Help Company B pass the audit smoothly。February 2017,Company B was successfully listed,Issue price is 25 yuan。February 2018,The lock-up period for the shares held by A has expired,The lowest transaction price on the day when the ban is lifted is 30 yuan。Until February 2020,A has always held the stock,The day the case was filed,The closing price of the stock market is 50 yuan,The 100,000 stocks he holds have a market value of 5 million yuan。After investigation,When B transfers shares to A,Funds are not tight。
2. Case Analysis
Whether A constitutes bribery,How to determine the amount of bribery,There are two opinions。The first opinion is that A actually invested 1 million yuan to purchase the shares of company B,The purchase price is not significantly lower than the market price,At the same time, equity registration changes were made,According to the current judicial interpretation,Not suitable to be considered as bribery,Should be considered a violation of integrity and discipline。The second opinion is that: A is a national staff member of the securities regulatory system responsible for listing review,Due to the special nature of the position,He contributed capital to purchase the original shares of the trustee company,Although it is an “investment” on the surface,But in fact both parties use it as a form of benefit transfer,Essentially a power-for-money transaction,The stock price on the day the case is filed shall be deducted from the cost,Confirmed to have accepted 4 million yuan in bribes。The third opinion is that: A constitutes the crime of accepting bribes,The reason is consistent with the second opinion,But for the amount of bribes,believes that the stock issue price and the lowest transaction price on the first trading day after the lock-up period should be used,The lower price of the two is used as the calculation standard, That is, 25 yuan after deducting 10 yuan from the purchase price,Determined the difference of 1.5 million yuan as bribery,The remaining portion will be collected as interest。The author agrees with the third view。
3. Commentary on the Discipline
(1) Adhere to the substantive theory to determine the nature of the behavior and the surprise purchase of original shares by state functionaries、Whether obtaining huge profits after listing constitutes the crime of accepting bribes and how to determine the amount of bribes,There has been controversy in practice and theory,The court’s judgment results are also different。 2007 "Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery" issued by the "Two High Schools and High Commissioners" (hereinafter referred to as the "Opinions"),Only clarifies the nature and amount of the act of accepting dry shares,Under the historical conditions at that time,Generally believed,As long as state staff actually contribute capital to subscribe for shares,For the subsequent appreciation and dividends of the share,None of them are considered to constitute a bribery crime。With the development and progress of society,The forms and methods of benefit transfer are also being updated and upgraded,State staff in the financial field, especially in the securities field, disguise themselves as investment and market behavior,Adopt “investing in shares with power before listing、Using power for profit during listing、Complete the realization of profits by "obtaining huge profits after listing"、It is not uncommon to skirt the rules and regulations。To this,Law enforcers cannot mechanically understand the spirit of judicial interpretations,Simply believe that as long as the state staff pays the original equity transfer fee at a reasonable price and actually contributes capital,None of them constitute the crime of accepting bribes,But it should be based on the principle of consistency between subjectivity and objectivity,Adhere to the theory of crime substance,Accurately identify the nature of the problem。 (2) National staff whose positions are closely related to listing purchase original shares, It is a means to realize the realization of power in practice,There is controversy over whether profit from purchasing original shares is regarded as bribery,It depends on the state staff who actually contributed money to purchase the shares,The original stock itself carries both huge risks and huge returns,Therefore,For the income obtained by state workers after purchasing original stocks after listing,It is impossible to completely rule out the benefits that capital deserves after taking huge risks。But the author thinks,As to whether the actual investment can be an obstacle to the establishment of the crime of accepting bribes,Don’t generalize,It should be combined with the specific case,Analysis from both objective and subjective aspects。 From an objective aspect,Under the current background that my country’s capital market reform is still gradually advancing and improving,Powers possessed by national staff of the securities regulatory system,and the resulting resources、Connections、Information, etc.,Plays a huge role in whether a company can go public smoothly,At the same time,After the original shares are listed,The appreciation of share value has strong certainty。Take the above case as an example,National staff closely related to listing,The act of purchasing original shares from the trustee of a company that is preparing to apply for listing,We cannot simply、Mechanically equate it with normal civil behavior between ordinary equal subjects,We should persist in looking at the essence through phenomena。Take the above case as an example,Close to launch、If Trustee B has no obvious financial needs,As a member of the Issuance Review Committee, Sky bet sports betting APP A contributes capital to purchase the original shares of Company B,In essence, it is not a real Sky bet online sports betting APP download “investment” behavior,It is a way to achieve “interest binding” and “power-for-money transactions” between state workers and clients,A takes advantage of his position to help B’s company complete its listing,Through the shares held by me,Acquisition of shares from unlisted to post-listed appreciation premium。Essentially,The appreciation premium is not the return that capital deserves after taking risks,It is the direct consideration and realization of the listing review rights of state staff,Original shares are just a means for both parties to realize the transfer of interests、Tools to realize the realization of power and props to conceal power-money transactions。 Due to the listing of the original shares,Holders often make huge profits,If the appreciation is deemed to be bribery,Subjectively,Require state staff and clients to have a clear understanding of the value-added portion of shares as the subject of bribery,Otherwise it violates the principle of consistency between subjectivity and objectivity in criminal law。Generally speaking,The original stock will appreciate significantly after listing, It is “common sense” generally known in the financial system,Especially for the national staff of the securities regulatory system who are directly responsible for listing review,Due to industry、Position、Professional background and other reasons,Concerning the business status of the trustee company、Have clear understanding and judgment of development prospects and expected price after listing,Both parties have a clear understanding of the value-added premium after the listing of the original shares as the subject matter of bribery。At the same time,Objectively,A has indeed taken advantage of his position to help Company B go public、The act of completing share appreciation,It actively pursues the appreciation of shares。In summary,Determine A’s profit-making behavior after purchasing the original stock and listing it as bribery,Conforming to the nature of bribery crime,In line with the principle of consistency between subjectivity and objectivity。 (3) The amount of bribes should be eliminated as much as possible from the impact of market fluctuations,Use the direct consideration of public power as the identification standard after the listing of the original shares,Prices tend to fluctuate wildly,What standard is used to determine the appreciation premium of shares,Finally determined amount of bribes accepted,It is the most complex and controversial issue in the original stock bribery case。As mentioned above,If purely theoretically,The subject matter of the bribe delivered to state staff by a trustee,It is the difference between the purchase price of the original stock and the appreciation after listing,After the company is officially listed,The public power of state workers has no impact on the price of shares,The changes in its stock price are entirely due to the normal fluctuations of the capital market。Therefore,The difference between the listing price and the original stock purchase price,It is the most direct consideration for public power,This standard is the most objective to determine the amount of bribes。But in practice,Generally, there will be a lock-up period for a certain period of time after the original stocks are listed,Only after the lock-up period,Only shares held by state functionaries can be traded freely,Only the price of public power can be realized,Starting from the lifting period,Should we continue to hold or sell shares,is a national staff based on the market、Policy、Subjective judgment on factors such as funds,The subsequent increases and decreases in share prices are due to pure market fluctuations,No longer relevant to bribery。Therefore,It is not reasonable enough to use the stock price on the day the case is filed or the day the stock is listed as the standard,The lowest transaction price on the first trading day after the lock-up period expires, minus the original stock purchase price, is used as the calculation standard,More in line with the objective reality。However,The standard is not perfect。First of all, all the fluctuations after the listing of the original stock,Essentially all come from the market,No longer related to the position of state staff,Recognize this part of the fluctuation as benefit transfer,Inconsistent with objectivity。Also,The capital market fluctuates violently,Sometimes the changes in share prices far exceed the normal expectations and even cognitions of state staff and clients,If we simply use the fact that both parties should have expected the change in stock prices as the reason to identify the huge gains as the amount of bribery, it does not violate subjective cognition,Not consistent with the real situation,It is also easy to cause the parties to be unconvinced、Disapproved。In summary,Both the above two identification standards are reasonable to a certain extent,But each has certain shortcomings,Which standard is used as the identification standard in practice,It can be explored and applied by investigators and judicial personnel based on specific cases and changes in stock prices after the listing of the original shares。As far as the author is concerned,Start by benefiting the object of investigation and reducing case disputes,Prefer the lower price between the stock issuance price and the lowest price on the first trading day after the expiration of the ban period,After deducting costs,As a criterion for determining the amount of bribery,Ensure the best results in the conviction and punishment of bribery of original shares。 (Selected from the website of the Central Commission for Discipline Inspection and the State Supervision Commission)
Editor: Wang Yixiao