Summary of the trial
To distinguish between private lending and borrowing bribery, it is not only possible to look at whether there are written loan procedures, nor can it be determined solely on the basis of the verbal evidence of both parties, but should be based on whether the expression of intent of both parties to borrow is genuine, and the occurrence and development process of the borrowing behavior should be taken as the logical order, and a comprehensive judgment should be made from the relationship between the borrower and the borrower, the purpose of the loan, the process of borrowing, and the repayment of the loan.
Basic facts of the case
Public Prosecution Organ: People's Procuratorate of Pinggu District, Beijing. Defendant: Wang Guijin The Pinggu District People's Court ascertained through trial that from March 2018 to July 2021, the defendant Wang Guijin served as deputy secretary of the Party Committee and mayor of the People's Government of Daxingzhuang Town, Pinggu District. In April and May 2018, defendant Wang Guijin accepted 4 million yuan in cash from Zhou Dongguo, the legal representative of Beijing Yitong Shengda Construction Engineering Co., Ltd. (hereinafter referred to as Yitong Shengda Company), in the name of borrowing money to purchase a house; In 2020, the defendant Wang Guijin's mother passed away and accepted 10,000 yuan in cash from Zhou Dongguo in the name of handing over money; During the Spring Festival of 2020 and 2021, defendant Wang Guijin successively accepted a total of 20,000 yuan in cash from Zhou Dongguo in the name of giving his children New Year's red envelopes. During this period, the defendant Wang Guijin successively provided assistance to Zhou Dongguo in the contracting of projects such as the earthwork of the Baigezhuang collective rental housing project, the housing construction project of the Daxingzhuang Town branch venue of the leisure conference, and the settlement of project payments by means of hints and instructions. From May and June 2019 to the end of 2020, Shan Baojun (Shan Baoman), the legal representative of Beijing Shihua Yide Construction Engineering Co., Ltd., successively gave the defendant Wang Guijin 800,000 yuan in cash on the grounds that the company's project contracting and project payment settlement required the defendant Wang Guijin's care. In February 2021, the defendant Wang Guijin was forced to petition migrant workers from Shanbaojun's company to ask for wages, and returned 800,000 yuan in cash to Shanbaojun. On July 7, 2021, defendant Wang Guijin was summoned to the case by telephone from the supervision organs, but did not truthfully confess the above facts. After the case was discovered, the family of the defendant Wang Guijin took the initiative to return 4.03 million yuan of illegal gains to the supervisory organs.
Adjudication Results
The Pinggu District People's Court held that the defendant Wang Guijin, as a state functionary, took advantage of his position to illegally accept property from others and seek benefits for others, and that his conduct constituted the crime of accepting bribes, and the amount was particularly huge, and should be punished in accordance with law. In view of the fact that the defendant Wang Guijin returned his illegal gains with the cooperation of his family, he may be given a lighter punishment in accordance with law. Therefore, the verdict: 1. Defendant Wang Guijin committed the crime of accepting bribes and was sentenced to 11 years imprisonment and a fine of 500,000 yuan. The 4.03 million yuan in bribes received by the defendant Wang Guijin, who was seized in the case, was confiscated and turned over to the state treasury. 3. The 800,000 yuan of bribes returned to Shan Baojun by the defendant Wang Guijin shall be recovered, confiscated, and turned over to the state treasury. After the first-instance verdict, the defendant Wang Guijin was not satisfied and appealed. Wang Guijin's grounds for appeal were: 1. The facts ascertained in the original judgment were unclear and the evidence insufficient. He did have the demand and behavior to buy a house, and the 4 million yuan between him and Zhou Dongguo was a loan in nature, and he did not seek benefits for Zhou Dongguo in contracting the project and settling the project payment, and the original judgment found that the amount of bribes was wrong; 2. Shan Baoman's 800,000 yuan bribe money has been returned before the case is discovered, and his punishment shall be commuted. The original sentence was excessive. After trial, the Beijing No. 3 Intermediate People's Court held that the appellant Wang Guijin, as a state functionary, had taken advantage of his position to illegally accept property from others and seek benefits for others, and that the amount of money was particularly huge, and that his conduct constituted the crime of accepting bribes and should be punished in accordance with law, so it ruled to reject the appeal and uphold the original judgment.
Case Analysis
The focus of the dispute in this case is: Is Wang Guijin's acceptance of 4 million yuan in cash from Zhou Dongguo an act of borrowing or accepting bribes in the name of borrowing? How should we distinguish between a new type of bribery case in the name of borrowing and a type of bribery in the form of borrowing? In the author's opinion, the specific determination should not only be based on whether there are written loan procedures, nor can it be determined only on the verbal evidence of both parties, but should be based on whether the intention of both parties to borrow is true, and the occurrence and development process of the borrowing behavior should be taken as the logical sequence, and a comprehensive judgment should be made from four aspects: the relationship between the borrower and the borrower, the purpose of the loan, the process of borrowing, and the repayment of the loan. 1. Examination of the relationship between the borrower and the borrowerIn civil law, the loan contract refers to the contract in which the borrower borrows money from the lender and returns the loan and pays interest when due, and the loan contract is divided into two categories, one is the financial loan contract to which the financial institution is a party, and the other is the borrowing behavior between natural persons and non-financial enterprises or each other, which is called private lending. There are differences in the relationship between the borrower and the borrower in private lending and borrowing bribery. Generally speaking, the parties to a private loan are equal civil subjects, and even if there are differences in the social status of the two parties, they often have relatives or friends. There are two reasons why the lender borrows, one is for friendship, and the other is for profit, no matter which reason, the lender has a certain trust in the reliability and repayment ability of the borrower, that is, the loan is based on the credit between the two parties. In the borrowing type of bribery, the borrower and the borrower often have a relationship between the administrative management and the managed, and there is no deep emotional basis, which is essentially a power-for-money transaction. In this case, judging from the relationship between Wang Guijin and Zhou Dongguo, in March 2018, Wang Guijin first came to Daxingzhuang Town as the mayor, and Zhou Dongguo was the legal representative of Yitong Shengda Company. Zhou Dongguo's company has been undertaking projects in Daxingzhuang Town for a long time, while Wang Guijin has the rights to settle project payments and contract projects of Zhou Dongguo's company, and there is an administrative relationship between the two. The evidence in the case proves that about one month after Wang Guijin took office, Zhou Dongguo gave Wang Guijin 4 million yuan in cash, and then Wang Guijin repeatedly provided convenience and assistance to Zhou Dongguo in matters such as the settlement of project payments, the contracting of earthworks for the Baigezhuang collective rental housing project, and the contracting of housing construction projects at the Daxingzhuang Town Branch of the Leisure Conference. There is obviously no rational basis for ordinary private lending between the two sides, and the subjective purpose of exchanging money for power is undoubtedly revealed. 2. At the level of borrowing purpose, the purpose of borrowing should be examined, focusing on the reason for borrowing and the whereabouts of the money. On the one hand, in private lending, the reason for borrowing is often authentic, reasonable and necessary, and the borrower usually clearly explains the reason for borrowing to the lender, and the lender will also understand the purpose of the borrower's borrowing, and voluntarily make a decision on whether to borrow and how much to borrow after considering the degree of personal relationship and the pros and cons. In borrowing bribery cases, the reason for the loan is often false, and it lacks rationality and necessity. It is often manifested as: the borrower does not explain the reason for borrowing or fabricates a false reason for borrowing when borrowing, and the lender happily lends without asking the reason; The borrower is in good financial condition and does not have an urgent need in the economy or has household assets that are several times the amount borrowed. On the other hand, the actual flow of money is also an important factor in distinguishing private lending from borrowing and bribery. In ordinary private lending, based on the principle of civil good faith, the whereabouts of the money and the reason for borrowing are usually the same. In borrowing bribes, the perpetrator often uses a false reason for borrowing as a cover, and there is a lack of consistency between the actual flow of money and the reason for borrowing, and the money is mostly deposited in a bank or consumed in a high amount by the actor. In this case, from the perspective of the reason for the loan, Wang Guijin claimed that the loan was for the purpose of buying a house, but in fact, Wang Guijin had more than one property in Beijing, and he claimed that the loan was for the purpose of buying a large house and wanted to pay for the house in a lump sum, and the reason for the loan was not necessary. Judging from the whereabouts of the money, after Wang Guijin received 4 million yuan in cash from Zhou Dongguo, he bought a house in June 2018 and April 2020, but he asked for a return a few months after paying a deposit or intention money, giving up buying a property. Although Wang Guijin had expressed his intention to purchase a house and had committed acts such as paying a deposit or intention to pay a house deposit, he repeatedly applied for a refund, and in the end, the money involved in the case was not used to purchase a house, but her husband had deposited 4 million yuan in small amounts of cash into an ATM machine several times into a bank account controlled by Wang Guijin. 3. At the level of the borrowing process, the differences between private lending and borrowing bribery are mainly reflected in the borrowing process, which is specifically manifested in whether there is an IOU, the time when the IOU is issued, the content of the IOU, the method of loan delivery, and whether the loan is public. In judicial practice, attention should be paid to the following contents when reviewing evidentiary materials: First, to find out whether there are loan procedures. In private lending, the parties usually make a clear agreement on the loan amount, interest, repayment time, etc., and present it in the form of an IOU or loan contract. In life, for small loans, it is common sense for both parties not to issue IOUs out of friendship or trust, but for large amounts of loans, even if there is a high level of trust or deep emotional foundation between the two parties, signing an IOU is also an indispensable link, which is the embodiment of the spirit of the civil law contract. In this case, for the large loan of 4 million yuan, Wang Guijin and Zhou Dongguo did not sign an IOU, nor did they require the borrower to issue an IOU or provide any guarantee, which is obviously contrary to common sense, and should be considered to be suspected of accepting bribes. Second, judge whether the content of the loan is clear and specific. Generally speaking, the closer the relationship between the two parties, the more brief the IOU, and the more distant the relationship between the parties, the more detailed the IOU will be. However, for large-amount borrowing, the lender generally has a complete loan procedure based on the risk assessment and trust in the spirit of the contract, and will not only stipulate the interest and repayment time, but also require the borrower to provide a guarantee or guarantee to ensure that the creditor's rights can be realized at maturity. On the other hand, in the case of borrowing bribes, due to the concealment of bribery, in judicial practice, most of the parties do not sign IOUs, and even if they sign IOUs, they often backsign the time of borrowing or use IOUs to cover up the essence of bribery. Of course, whether the content of the IOU is perfect is not a determining factor in measuring private lending and borrowing bribery, but needs to be comprehensively judged in combination with other factors, if the actor's true intention is not to borrow, but to use the power in the hands of others to seek benefits for himself, no matter how complete the borrowing procedures between the two parties, the IOU or loan contract between the two parties is invalid due to the false acts of both parties, and the acts of both parties constitute borrowing bribery. In this case, Zhou Dongguo gave Wang Guijin a large loan of 4 million yuan, but the two parties did not sign an IOU, nor did they agree on the repayment date and interest rate of the loan, and Zhou Dongguo did not require Wang Guijin to provide any form of guarantee, which is contrary to common sense and shows that the borrowing behavior between the two parties is not normal. Third, it is necessary to determine whether the borrowing behavior is public. Private lending is a legal civil act, and both parties usually do not mind making it public, and for larger amounts of loans, there are often guarantors who witness and bear the guarantee liability as a third party. In the case of borrowing bribes, both parties are aware of the illegality of their own acts, and in order to evade legal sanctions, they often do so in private and secretly between the two parties, excluding the participation or knowledge of others. In this case, Zhou Dongguo gave Wang Guijin 4 million yuan on one night, and Zhou Dongguo called Wang Guijin himself and said that he was ready to wait for him to the south of Pinggu No. 4 Middle School. Wang Guijin went to the meeting place alone, Zhou Dongguo took down a large dark suitcase from the trunk of the car, and moved it to the trunk of Wang Guijin's car, Zhou Dongguo told Wang Guijin that the box contained 4 million yuan in cash, and they drove home. Judging from the time, place, means of delivery and contact information of the money selected by the two parties, the process of money delivery between the two parties is extremely secret, and there is a greater suspicion of accepting bribes. Fourth, examine whether the payment method of the loan is reasonable. For normal civil loans, especially large-amount civil loans, based on the considerations of safety, convenience and efficiency, the actor will generally choose the method of bank transfer. In the event of a civil dispute, the bank transfer records can also be submitted to the court as evidence. However, in the case of borrowing bribes, for the purpose of evading detection, even if the distance is far away or the amount is huge, the perpetrator will reject the bank transfer and prefer to pay the money in cash. In this case, Zhou Dongguo admitted that the 4 million yuan was a bribe during the investigation stage, but during the first-instance trial, his testimony changed, saying that the 4 million yuan given to Wang Guijin was a loan and the purpose was to buy a house. But rational analysis, if Zhou Dongguo's testimony is true and Wang Guijin's confession corroborates each other, the 4 million yuan is a borrowed house payment, then why did the two parties choose to trade in cash? In the information age, online payment methods are used to buy houses, and it is not convenient to carry 4 million yuan in cash, so it is obviously contrary to normal transaction habits to collect 4 million yuan in cash in order to buy a house. Fourth, the repayment of loans, the investigation of the repayment of loans, should be based on whether there is a repayment of the demand and the reasons for non-repayment. On the one hand, normal private lending is generally accompanied by the borrower's repayment and the lender's collection behavior, but for the borrowing type of bribery, because both parties are well aware of the nature of the money, it is only to cover the bribery behavior with a legal loan veil, so there is no repayment behavior and collection behavior in practice. Even if there is a repayment behavior, the repayment amount is quite different from the loan amount, in order to create a false impression of private lending. On the other hand, there are two reasons for the non-repayment of the loan, one is the lack of repayment ability, and the other is the lack of willingness to repay. In bribery cases, the bribe-taker usually has the ability to repay, but does not repay the bribes for a considerable period of time. In this case, judging from the repayment of the loan, since Zhou Dongguo handed over 4 million yuan to Wang Guijin, he has been in a state of ignorance. The evidence in the case shows that Wang Guijin has the ability to repay, but in the more than 3 years from 2018 to 2021, Wang Guijin has never had the willingness and behavior to repay, which does not conform to the natural law of private lending. In summary, the 4 million yuan given by Zhou Dongguo to Wang Guijin should be characterized as bribery, and Wang Guijin's conduct constituted the crime of accepting bribes.
Author: Zhong Xin, Zhang Yuan, Yu XiaohangUnit: Beijing No. 3 Intermediate People's CourtCase No.: First Instance (2021) Jing 0117 Xing Chu No. 277 Second Instance (2022) Jing 03 Xing Zhong No. 157
Source: People's Justice, Cases, Issue 14, 2023
Reprinted from: Criminal Trial Research Official Account, only for learning and discussion, such as invasion and deletion, thank you