The crime of bribery refers to the act of giving money or goods to a state functionary for the purpose of seeking improper benefits. The act of bribery undermines the integrity of state functionaries' official conduct, and also undermines the order of the socialist market economy, which is seriously harmful to society.
With the in-depth development of the anti-corruption struggle, the role of bribery in the criminal law has become more and more important, and how to accurately determine the crime of bribery has become a difficult issue in judicial practice.
The legislative amendment to the crime of bribery in the Ninth Amendment to the Criminal Law not only increases the statutory penalty for the crime of bribery, but also adds special lenient punishment circumstances. This article elaborates on the crime of bribery from the following aspects.
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What is the crime of bribery
According to Article 389 of the Criminal Law of the People's Republic of China, the crime of bribery refers to the act of giving money or goods to a state functionary for the purpose of seeking improper benefits.
"Improper benefits" refers to the act of giving state functionaries money or goods in violation of state regulations in economic, organizational and personnel management and other activities, or by giving state functionaries kickbacks or handling fees in various names in violation of state regulations. "Improper advantage" is not an essential element of the crime of bribery. The statutory maximum penalty for bribery is life imprisonment.
According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Corruption and Bribery, "the standards of 'relatively large amount' and 'exceptionally large amount' stipulated in the first paragraph of article 163 of the Criminal Law shall be implemented with reference to the provisions of paragraph 2 (1) of article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Criminal Cases of Corruption and Bribery." ”
Article 1, paragraph 1 (2) of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Corruption and Bribery stipulates: "Where a briber voluntarily confesses his bribery before being prosecuted, the punishment may be reduced or the punishment may be exempted. ”
The above two judicial interpretations stipulate the three criteria of "relatively large amount", "huge amount" and "exceptionally large amount", and the above three standards are applied in judicial practice to determine the conviction and sentencing standards for the crime of bribery.
The second paragraph of Article 390 of the Criminal Law of the People's Republic of China stipulates: "Whoever commits the crime of bribery shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined; Whoever seeks improper benefits due to bribery, and the circumstances are serious, or the national interests suffer major losses, shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined; Where the circumstances are particularly serious, or where national interests are particularly heavy losses, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or have their property confiscated. ”
According to the above provisions and the circumstances encountered in judicial practice, the following conditions should be met at the same time to determine the crime of bribery:
(1) The perpetrator offers bribes in order to seek improper benefits;
(2) The perpetrator has committed bribery;
(3) The act of bribery violates state regulations;
(5) There must be a causal relationship between the acts of seeking improper benefits. Where a criminal suspect voluntarily confesses his bribery before being prosecuted, or a criminal suspect truthfully confesses his crime, sincerely repents of his crime, actively returns the stolen goods, and avoids or reduces the occurrence of damage results after being prosecuted, the punishment may be mitigated in any of the following circumstances: Voluntarily confess the vast majority of criminal facts that the case-handling organs have not yet learned; Truthfully confess most of the facts of the crime that the case-handling organs have not yet learned; For major meritorious performances or cases involving major national interests.
In judicial practice, it is also determined that the briber constitutes the crime of bribery because he has been arrested and brought to justice or voluntarily confessed to the bribery. In addition, except where the criminal suspect voluntarily confesses that he intended to accept bribes before being prosecuted, but did not have the circumstances of asking for bribes.
Constituent elements of the crime of bribery
To constitute the crime of bribery, the following elements must be met: bribes to state functionaries in order to seek improper benefits, and the amount is more than 30,000 yuan; Those who voluntarily confess their bribery before being prosecuted may have their punishment mitigated or mitigated.
The subject of the crime of bribery is a general subject, that is, a natural person who has reached the age of 16 and has the capacity for criminal responsibility can constitute the crime. Among them, those who have committed several crimes shall commit several independent criminal acts, and shall be convicted and punished separately according to each crime.
Article 390 of the Criminal Code stipulates that bribery is not a bribe for a person who has not obtained an improper advantage as a result of extorting money or goods to a State functionary. The "improper interests" mentioned here mainly refer to interests beyond the normal scope and scope.
According to the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Commercial Bribery, "In any of the following circumstances, it may be found to be 'seeking improper benefits':( 1) Bribery to three or more people; (2) Using unlawful gains for bribery; (3) Seeking promotion or adjustment through bribery; (4) Offering bribes to state functionaries with duties such as supervision and management of food, medicine, production safety, and environmental protection, and carrying out illegal activities; (5) Offering bribes to judicial personnel, affecting judicial justice; (6) The amount of economic losses caused is more than 500,000 yuan or less than 1 million yuan. Therefore, only bribery for the purpose of obtaining an improper advantage can be regarded as "seeking improper advantage".
The subjective aspect of this crime is intentional and has the purpose of seeking improper benefits. The briber must subjectively have the intention to seek improper benefits, that is, he knowingly gives money to a state functionary for his personal gain. The briber subjectively recognizes that the purpose of giving money or goods to a State official is to seek improper advantage.
If the briber subjectively does not have the purpose of seeking improper benefits or believes that he has not sought improper benefits, even if he commits the act of giving money or goods to a state functionary, it cannot constitute the crime of bribery.
If the briber knowingly accepts the property to a state functionary for the purpose of seeking benefits for other individuals or units, it cannot be recognized as a bribe.
When determining whether the crime of bribery is constituted, attention should also be paid to the following issues: whether the briber subjectively has the purpose of seeking improper benefits.
If the briber only gives money or goods to a state functionary for the purpose of obtaining certain economic or other benefits for himself, it is generally not appropriate to recognize the crime of bribery; If the briber knowingly gives property to a State official for his own benefit, he shall be convicted and punished according to the nature of his conduct.
Objectively, whether the act of giving money or goods to a state functionary has been committed. Giving money to a state functionary is one of the acts committed in the course of bribery for improper benefits.
Giving money to a State official without this act cannot be considered an offence of bribery. If the briber conspires with a State agent to give money, although a loss is caused to the State agent, such loss is caused by the briber and the State agent.
Whether the giving of property violates the law or whether it violates public order and morals. According to the above-mentioned legal provisions and judicial interpretations, it can be seen that the briber giving money to a state functionary violates the law;
Bribers give improper benefits to state officials. If a person does not obtain improper benefits because he has been blackmailed into giving money or goods to a state functionary, it is not a crime of bribery;
The briber did not seek improper advantage; The giving of property to State agents is for illegal purposes. It is an offence if the briber bribes a State agent for an unlawful purpose; If the briber has a legitimate purpose and no unlawful purpose, it does not constitute an offence.
Article 391 of the Criminal Law stipulates: "Whoever gives money or goods to state organs, state-owned companies, enterprises, public institutions or people's organizations for the purpose of seeking improper benefits; Or in economic transactions, in violation of state regulations, giving various nominal kickbacks and handling fees..."
According to the above-mentioned legal provisions, it can be seen that giving money or goods to state organs, public institutions or people's organizations is one of the acts of bribery. Giving money to a State functionary in violation of the provisions of the law constitutes the crime of bribery.
Application of special lenient punishment circumstances
Special lenient circumstances refer to those who, during or after committing a crime, voluntarily surrender to the case and truthfully confess their crimes, or truthfully confess to other crimes that the judicial organs have not yet learned during or after committing a crime, or during the period when compulsory measures are taken, truthfully confess to other crimes that the judicial organs have not yet learned; or truthfully confessing other criminal facts that the judicial organs have not yet learned, it shall be found to be "automatic surrender" as provided for in the Criminal Law.
The third paragraph of article 163 of the Criminal Law stipulates: "Where criminal suspects, defendants or criminals serving sentences who have been subjected to compulsory measures truthfully confess to other crimes of their own that have not yet been known to the judicial organs, they shall be deemed to have turned themselves in. ”
Article 4 of the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Determination of Voluntary Surrender and Meritorious Service in Handling Job-related Crime Cases (Fa Fa [2016] No. 22) stipulates: "A defendant who confesses to other crimes not yet known to the judicial organs is a voluntary surrender. However, where the defendant has any of the following circumstances, it cannot be deemed to have surrendered voluntarily: (1) truthfully confessing his crime, admitting the facts of the alleged crime, and being willing to accept punishment; (2) Reporting or exposing major criminal conduct by others, and verifying that it is true; (3) There are major meritorious performances or the case involves major national interests. ”
In judicial practice, there is still controversy over whether the time required for voluntary surrender is required at the investigation stage. The author believes that if a criminal suspect voluntarily confesses his crime during the investigation stage, it should be regarded as an automatic surrender. However, whether it constitutes "automatic surrender" at the stage of reviewing the prosecution needs to be determined according to the specific circumstances of the prosecution review.
The second paragraph of article 204 of the Rules of Criminal Procedure of the People's Procuratorates (for Trial Implementation) stipulates: "Where a criminal suspect truthfully confesses his crime when being summoned for the first time by an investigative organ or taking compulsory measures, he may be deemed to have voluntarily surrendered. ”
According to this provision, voluntary surrender can be regarded as automatic surrender as long as it has been summoned for the first time or compulsory measures have been taken.
After a criminal suspect has been subjected to compulsory measures, truthfully confessing to other crimes of his or her that the judicial organs have not yet learned, even if the confession was made while the criminal suspect was in detention, does not affect the establishment of a voluntary surrender, but the punishment shall be mitigated or commuted in accordance with law. Truthfully confessing one's own crime means that after the criminal suspect voluntarily surrenders, he truthfully confesses his main criminal facts.
Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Handling of Voluntary Surrender and the Specific Application of Law for Meritorious Service (Fa Shi [2009] No. 18) stipulates: "According to the first paragraph of article 67 of the Criminal Law, a person who voluntarily surrenders after committing a crime and truthfully confesses his crime is a voluntary surrender. For criminals who voluntarily surrender, the punishment may be mitigated or commuted. Among them, if the crime is minor, the punishment can be exempted. ”
In summary, there are different opinions in law on whether a criminal suspect who voluntarily surrenders in the crime of bribery and truthfully confesses his crime can be recognized as voluntarily surrendering and giving a lighter punishment.
Where the briber voluntarily confesses the act of bribery before being prosecuted, it may be regarded as meritorious performance. If the briber truthfully confesses his bribery before being prosecuted, it constitutes a voluntary surrender.
However, if he truthfully confesses his bribery after being prosecuted, it can also be regarded as a major meritorious performance. At the stage of review and prosecution, if the briber truthfully confesses the criminal act committed by the briber, but voluntarily confesses the bribery before being prosecuted, and meets the requirements for voluntary surrender provided for in the Criminal Law, it may be recognized as having made major meritorious performances.
In future judicial practice, judicial organs shall accurately determine the crime of bribery in accordance with law, strictly grasp the applicable conditions for the lenient punishment of the crime of bribery, and implement the criminal policy of combining leniency and strictness.
At the same time, judicial organs shall, in conjunction with the special lenient punishment circumstances added in the Criminal Law Amendment (IX), strictly grasp the identification standards, and lawfully and accurately apply the special lenient punishment circumstances.
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