summary
The content of the Criminal Law Amendment (12) mainly involves two aspects: the crime of bribery and the crime of breach of trust by insiders of private enterprises. The subject of the crime of breach of trust extends from the public domain (staff of state-owned units) to the private sector (internal personnel of private enterprises). For the same or similar breach of trust, we cannot treat the relevant acts differently under the criminal law simply because of the difference in the nature of the ownership of the damaged enterprise. The Amendment (12) to the Criminal Law regulates the same breach of trust by different criminal entities in the crime of breach of trust, such as the crime of illegally operating the same type of business, which reflects a horizontal and symmetrical legislative approach. The Amendment (12) to the Criminal Law adjusts the statutory penalties for bribery crimes such as accepting bribes by units, reflecting a vertically symmetrical legislative approach. The new offences added by the amended provisions cannot be retroactive, and the adjustment of the statutory penalties for individual crimes may be retroactive under certain circumstances. "Judicial passivity" simply cannot eliminate the legal consequences caused by "legislative positivity". While constantly seeking a dynamic balance between the protection of legal interests and the protection of human rights, we should continue to reflect on issues such as asymmetric legislation when amending the provisions of the Criminal Law.
Keywords: crime of breach of trust; bribery crimes; applicable standards; legislative reflection; Criminal Law Amendment (12)
At present, improving the level of modernization of criminal governance is the key for all countries to cope with the increasingly severe crime situation. In September 2021, the Central Commission for Discipline Inspection and the State Supervision Commission, together with the Organization Department of the CPC Central Committee, the United Front Work Department of the CPC Central Committee, the Central Political and Legal Commission, the Supreme People's Court, and the Supreme People's Procuratorate, jointly issued the "Opinions on Further Promoting the Joint Investigation of Bribery and Bribery", which clearly pointed out that "insisting on the joint investigation of bribery and bribery is an important decision made by the 19th National Congress of the Communist Party of China, and it is an inevitable requirement to unswervingly deepen the anti-corruption struggle and promote the integration of those who dare not be corrupt, cannot be corrupt, and do not want to be corrupt." On July 14, 2023, the Central Committee of the Communist Party of China and the State Council issued the "Opinions on Promoting the Development and Growth of the Private Economy", Article 11 of which clearly stipulates: "Build an institutional mechanism for preventing and controlling corruption at the source of private enterprises." Judicial interpretations have been issued to increase the degree of punishment for corrupt acts such as embezzlement, misappropriation of funds, and bribery by staff members of private enterprises in accordance with the law...... Strengthen the governance of corruption at the source of private enterprises...... In the context of the policies of "investigating bribery and bribery together" and "strengthening the governance of corruption within private enterprises", the National People's Congress quickly carried out relevant work to amend the current Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law"). On July 25, 2023, the Amendment (12) (Draft) to the Criminal Law of the People's Republic of China was first submitted to the Fourth Session of the Standing Committee of the 14th National People's Congress for deliberation. On December 25, 2023, the seventh meeting of the Standing Committee of the 14th National People's Congress conducted the second review of the "Amendment (12) (Draft) to the Criminal Law of the People's Republic of China". On December 29, 2023, the Seventh Session of the Standing Committee of the 14th National People's Congress (NPC) formally deliberated and passed the Amendment (12) to the Criminal Law of the People's Republic of China (hereinafter referred to as the "Latest Amendment"). The latest amendment has a total of eight articles, mainly related to the crime of breach of trust and the crime of bribery by insiders of private enterprises. Specifically, the first three articles of the latest amendment mainly amend the relevant crimes of breach of trust from the perspective of the subject of the crime, specifically involving the crime of illegally operating the same type of business under Article 165 of the Criminal Law, the crime of illegally profiting relatives and friends under Article 166 of the Criminal Law, and the crime of discounting shares at a low price and selling the assets of companies and enterprises under Article 169 of the Criminal Law. Articles 4 to 7 of the latest amendments mainly amend some bribery crimes in terms of statutory punishment ranges and aggravating circumstances, involving the crime of accepting bribes by units under Article 387 of the Criminal Law, the crime of offering bribes under Article 390 of the Criminal Law, the crime of offering bribes to units under Article 391 of the Criminal Law, and the crime of offering bribes to units under Article 393 of the Criminal Law.
By combing through the main contents of the latest amendment, it is not difficult to find that the comprehensive anti-corruption struggle in the public and private spheres such as state organs, state-owned units, and private enterprises is a distinctive feature of the current amendment to the Criminal Law. The Criminal Law has continuously increased the punishment of bribery crimes, and at the same time, the punishment targets of related breach of trust crimes have been extended from the public domain (employees of state-owned units) to the private sector (internal personnel of private enterprises). In the author's opinion, although the punishment of corruption at the level of the criminal law is conducive to the realization of equal protection for private enterprises, the amendment of the Criminal Law will also give rise to new problems in the application of law. The latest amendment expands the scope of the above-mentioned crimes from the staff of state-owned companies and other state-owned units to the staff of private enterprises by adding a second paragraph to articles 165, 166 and 169 of the Criminal Code. It should be noted that the relevant content of the latest amendment mainly focuses on increasing the number of criminal subjects, while the provisions on the types of acts and the criteria for criminalization of relevant crimes committed by employees of private enterprises are lacking. It can be seen that how to further clarify private enterprises
Of the eight provisions of the latest amendment, except for Article 8, which stipulates the effective time of the latest amendment, the remaining seven articles are amendments to the substantive content of the Criminal Law. Here, it is necessary to interpret the provisions of the latest amendment that have substantive amendments in the normative sense of criminal law.
(1) Interpretation of the content of revisions to the crime of breach of trust by internal personnel of private enterprises
First, Article 1 of the latest amendment expands the scope of the crime of illegally operating the same type of business. The latest amendment amends "directors and managers" in paragraph 1 of the crime of illegally operating similar businesses in Article 165 of the Criminal Law to "directors, supervisors and senior managers"; At the same time, paragraph 2 is added, which specifically reads: "Where directors, supervisors, or senior managers of other companies or enterprises violate the provisions of laws and administrative regulations by carrying out the acts described in the preceding paragraph, causing major losses to the interests of the company or enterprise, they shall be punished in accordance with the provisions of the preceding paragraph."
In the past, "to determine whether a certain act constitutes the crime of illegally operating the same type of business, it mainly depends on whether the perpetrator is a director or manager of a state-owned company or enterprise, whether he has taken advantage of his position, whether he has operated a similar type of business, and whether he has obtained a huge amount of illegal benefits." Prior to the latest amendment, the criminal law on the crime of illegally operating the same type of business only protected the property and legal interests of state-owned companies and enterprises, but not the property and legal interests of the collective economy or the private economy, which was inconsistent with the mainland's concept of equal protection of the public and non-public economies. The Constitution of the People's Republic of China (hereinafter referred to as the "Constitution"), which has the highest legal status, and other departmental laws such as the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code"), all have relevant provisions on equal protection of state-owned, collective and private property. For example, article 11 of the Constitution stipulates that "the State shall protect the legitimate rights and interests of the individual economy, the private economy and other non-public economies"; Article 207 of the Civil Code stipulates that "the property rights of the state, collectives, private individuals and other rights holders shall be equally protected by law and shall not be infringed upon by any organization or individual". Therefore, the criminal law should, as far as possible, accord equal protection to State, collective and private property. The latest amendment expands the scope of the crime of illegally operating the same type of business from the relevant personnel of state-owned companies and enterprises to the internal personnel of private enterprises, which is conducive to the equal regulation of the breach of trust of internal personnel of private enterprises in the criminal law, so as to achieve the goal of equal protection of private enterprises.
Second, Article 2 of the latest amendment adds the types of acts that make illegal profits for relatives and friends, and expands the scope of the crime. The latest amendment adds the types of criminal acts of "accepting services" and "providing services" to Article 166 of the Criminal Law for the crime of illegal profit-making by relatives and friends, and adds the criminal types of "accepting substandard goods and services" in Item 3 of paragraph 1; At the same time, the second paragraph is added to expand the scope of criminal entities, specifically as follows: "Where the staff of other companies or enterprises violate the provisions of laws or administrative regulations by carrying out the conduct in the preceding paragraph, causing major losses to the interests of the company or enterprise, they shall be punished in accordance with the provisions of the preceding paragraph."
The crime of illegally making profits for relatives and friends is essentially a crime of breach of trust, and the criteria for judging the constitutive elements of the crime such as "relatives and friends", "major losses to national interests", and "the unit's profit-making business" have always been controversial in theory. The latest amendment expands the scope of the crime of illegal profit-making by relatives and friends from "staff of state-owned companies, enterprises and public institutions" to "staff of other companies and enterprises", which demonstrates the legislative purpose of the Criminal Law to provide equal protection for private enterprises. However, it seems that the conditions for the staff of other companies and enterprises to constitute the crime of illegally making profits for relatives and friends still need to be further clarified and clarified. For example, what are the specific normative legal documents referred to in "violation of laws and administrative regulations"? Does "carrying out the conduct in the preceding paragraph" be exactly the same as the types of conduct listed in the preceding paragraph? Is "causing major losses to the interests of the company or enterprise" consistent with the standard for judging "causing major losses to national interests" in the provisions of the preceding paragraph? These issues need to be clarified. It can be seen from this that the latest amendment increases the types of acts for the crime of illegally making profits for relatives and friends and expands the scope of criminal subjects, which will inevitably give rise to a series of new problems in the application of law.
Third, Article 3 of the latest amendment expands the scope of the crime of favoritism, fraud, depreciation of shares at a low price, and sale of company or enterprise assets (the crime as amended by the judicial interpretation is hereinafter expressed as the revised crime hereinafter). The latest amendment adds a second paragraph to the crime of converting shares at a low price or selling the assets of a company or enterprise for personal gain and malpractice in Article 169 of the Criminal Law, which specifically reads: "Where the person in charge directly responsible for another company or enterprise engages in favoritism and irregularities by converting the assets of the company or enterprise into shares at a low price or selling them at a low price, causing major losses to the interests of the company or enterprise, he shall be punished in accordance with the provisions of the preceding paragraph."
Prior to this, the provisions of the Criminal Law on the crimes of favoritism and irregularity, discounting shares at low prices, and selling state-owned assets may have discriminated against the property of non-state-owned units. This is because whether it is a state-owned company or a private enterprise, favoritism and malpractice such as discounting the assets of the enterprise at a low price or selling them at a low price may lead to heavy losses of the enterprise. The latest amendments expand the scope of the crime of favoritism, irregularity, discounting shares at a low price, or selling the assets of a company or enterprise from "a person in charge who is directly responsible for a state-owned company or enterprise or its superior competent department" to "a person in charge who is directly responsible for other companies or enterprises", which is conducive to the equal protection of the property of state-owned units and the property of non-state-owned units in the criminal law.
To sum up, the crimes of illegally operating similar businesses, illegally making profits for relatives and friends, and the crimes of discounting shares at low prices and selling company or enterprise assets for personal gain and malpractice in the Criminal Law all belong to the category of the crime of breach of trust. Whether it is a state-owned company or a private enterprise, the breach of trust of insiders may cause harmful results that seriously infringe on the interests of the enterprise. Under the wave of reform and opening up in the era of reform and opening up, the economic volume of some private enterprises in the mainland can already match or even exceed that of most state-owned companies, such as Jingdong Group (operating income will exceed 1 trillion yuan in 2023) and so on. The social harm of the breach of trust of the insiders of listed companies and other large private enterprises may be greater than that of the insiders of state-owned enterprises. For the same or similar breach of trust, we cannot treat the relevant acts differently under the criminal law simply because of the difference in the nature of the ownership of the damaged enterprise. In other words, in the criminal governance of the breach of trust of enterprise insiders, the criminal law cannot only protect state-owned property without protecting collective property or private property. Therefore, the criminal law should provide equal criminal law for breach of trust that occurs within state-owned companies and private enterprises. The latest amendment expands the scope of the above three crimes, which is not only highly in line with the requirements of the CPC Central Committee's policy of "strengthening the governance of corruption within private enterprises", but also demonstrates the constitutional concept of equal protection of state-owned, collective and private property.
(2) Interpretation of the revised content of the crime of bribery
First, Article 4 of the latest amendment amends the statutory range of punishment for the crime of accepting bribes by an entity. Article 387 of the Criminal Law stipulates that before the amendment, there was only one statutory penalty for the crime of accepting bribes by an entity, that is, "fixed-term imprisonment of not more than five years or criminal detention". The latest amendment revises the first level of the statutory penalty for the crime of accepting bribes by a unit to "fixed-term imprisonment of not more than three years or short-term detention", and at the same time adds the second level of statutory punishment, which reads "where the circumstances are particularly serious, the sentence shall be between three and ten years imprisonment".
As is well known, the statutory penalty for the crime of accepting bribes is in accordance with the provisions of article 383 of the Criminal Code for the crime of embezzlement. As far as the main punishment is concerned, there are four levels of "fixed-term imprisonment of not more than three years or short-term detention", "fixed-term imprisonment of not less than three years but not more than ten years", "fixed-term imprisonment of more than ten years or life imprisonment", and "life imprisonment or death penalty". Because the crime of accepting bribes by an entity is also a type of bribery crime, the latest amendment intends to bring the statutory penalty for the crime of accepting bribes closer to the crime of accepting bribes. Considering that the social harm of the crime of accepting bribes by an entity is less than that of a natural person accepting bribes, the latest amendment only changes the statutory penalty for the crime of accepting bribes from one to two levels, and at the same time keeps the two levels of statutory punishment for the crime of accepting bribes from a unit completely consistent with the first two levels of statutory punishment for the crime of accepting bribes (in terms of the setting of the main punishment). After the latest amendments, the standards for dividing the range of punishments for multiple bribery-related crimes, such as the crime of accepting bribes, the crime of accepting bribes by non-state functionaries, and the crime of accepting bribes by units, have been relatively unified. Although the statutory punishment levels for the above three crimes are different (there are four statutory punishment levels for the crime of accepting bribes, three statutory punishment levels for the crime of accepting bribes by non-state functionaries, and two statutory punishment levels for the crime of accepting bribes by units), the above crimes are all subject to "10 years imprisonment" as the second statutory maximum punishment. It is worth noting that Article 388-1 of the Criminal Law for the crime of using influence to accept bribes (in terms of the main punishment setting) is the first level of statutory punishment of "fixed-term imprisonment of not more than three years or criminal detention", the second level of statutory punishment is "fixed-term imprisonment of not less than three years but not more than seven years", and the third level of statutory punishment is "fixed-term imprisonment of more than seven years". It can be seen that the statutory maximum penalty for the second level of the crime of using influence to accept bribes is seven years imprisonment, which is inconsistent with the general practice of taking 10 years imprisonment as the second statutory maximum sentence for other bribery crimes. Therefore, in the subsequent amendment of the Criminal Law, it seems that the statutory penalty for the crime of using influence to accept bribes can be brought into line with other bribery crimes, and the fixed-term imprisonment of 10 years can be stipulated as the second statutory maximum sentence.
Second, Article 5 of the latest amendment amends the statutory penalty for the crime of offering bribes and adds aggravating circumstances. Before the amendment of the Criminal Law, the first level of the statutory penalty for the crime of offering bribes under Article 390 of the Criminal Law was "fixed-term imprisonment of not more than five years or short-term detention and a fine", and the second level of the statutory penalty was "fixed-term imprisonment of not less than five years but not more than ten years and a fine". The latest amendment amends the first level of the statutory penalty for the crime of offering bribes to "fixed-term imprisonment of not more than three years or short-term detention and a fine", and the second level of the statutory penalty is amended to "fixed-term imprisonment of not less than three years but not more than ten years and a fine". In the author's opinion, the purpose of the latest amendment to adjust the statutory penalty for the crime of offering bribes is to bring the crime of offering bribes as close as possible to the statutory penalty for the crime of accepting bribes. In the theory of criminal law, the crime of offering bribes and the crime of accepting bribes are typical joint offenses, and the so-called "no bribery means no bribery", and in this regard, it seems that the statutory penalties for the crime of offering bribes and the crime of accepting bribes should be the same. However, the criminal laws of most countries treat the crime of bribery and the crime of accepting bribes differently in the mode of setting the statutory penalty, that is, the statutory penalty for the crime of bribery is generally lower than the statutory penalty for the crime of accepting bribes. "At present, all forms of bribery in society have a shaped nature, and the innate abusive motive of power determines that the state should put the prevention and punishment of bribery at the center of criminal policy." The criminal law of the mainland has also adopted the criminal legislative norm of "heavy bribery and light bribery", and for a long time, the statutory penalty for the crime of accepting bribes in legislation has also been significantly higher than that for the crime of offering bribes. It should be noted that the Ninth Amendment to the Criminal Law adjusts the statutory penalty for the crime of embezzlement under Article 383 of the Criminal Law (the crime of accepting bribes is punished in accordance with this article), but does not simultaneously amend the statutory penalty for the crime of offering bribes. As a result of the relevant adjustments in the Ninth Amendment to the Criminal Law, the first level of statutory punishment for the crime of accepting bribes is "fixed-term imprisonment of not more than three years or short-term detention and a fine", while the first level of the statutory penalty for the crime of offering bribes is "fixed-term imprisonment of not more than five years or short-term detention and a fine". The above-mentioned differences in statutory penalties obviously invert the severity of the punishment for the crime of offering bribes and the crime of accepting bribes, and are not reasonable. In the author's opinion, whether from the perspective of the degree of harm to society or the degree of role played in the joint offender, the statutory penalty for the crime of offering bribes should be lighter than (at least not heavier) than the crime of accepting bribes. The latest amendment attaches great importance to this phenomenon of inversion of statutory punishment provisions, and has made timely adjustments, and the three levels of statutory penalties for the crime of offering bribes and the first three levels of statutory penalties for the crime of accepting bribes (except for the fourth level of statutory punishment "life imprisonment or death penalty") are completely consistent in the main punishment. It can be seen that the latest amendment to increase the statutory punishment range for the crime of parallel bribery and bribery is not only to check and fill in the gaps in the Ninth Amendment to the Criminal Law, but also to implement the policy concepts of "joint investigation of bribery and bribery" and "punishment of bribery and bribery". It is worth noting that the latest amendment does not increase the statutory maximum penalty for bribery, but only fine-tunes the criteria for dividing the first and second levels of statutory penalties for bribery. The above-mentioned adjustments in the latest amendment once again reflect that the social harmfulness of the crime of offering bribes and the crime of accepting bribes are not completely identical, and it is not feasible to theoretically emphasize the viewpoint of "taking bribes and punishing them severely". In fact, "investigating bribery and bribery together" does not mean that it is necessary to achieve the effect of "accepting bribes and giving bribes and punishing them severely". Because bribery is less socially harmful than bribery, it is clearly not advisable to raise the statutory maximum penalty for bribery to the death penalty (consistent with the statutory maximum penalty for bribery). As far as the adjustment of the statutory penalty is concerned, the relevant amendments of the latest amendment seem to be more favorable to the application of the statutory penalty for bribe-givers, as the latest amendment lowers the maximum penalty in the first tier of the statutory penalty and the minimum penalty in the second tier of the statutory penalty for the crime of bribery. Specifically, compared with "fixed-term imprisonment of less than five years or criminal detention", it is obvious that the statutory sentence of "fixed-term imprisonment of less than three years or criminal detention" is lighter; Compared with "fixed-term imprisonment of not less than five years but not more than ten years", it is obvious that the statutory sentence of "fixed-term imprisonment of not less than three years but not more than ten years" is lighter. Therefore, the adjustment of the statutory penalty for bribery in the latest amendment not only satisfies the policy requirement of "joint investigation of bribery and bribery", but also amends the unreasonable phenomenon of "inverting the statutory penalty for bribery and bribery" in the original Criminal Law.
In addition to adjusting the statutory penalty for the crime of offering bribes, the latest amendment also adds seven types of aggravating penalties for bribery by natural persons in paragraph 2 of Article 390 of the Criminal Law, which specifically read: "In any of the following circumstances, a heavier punishment shall be imposed: (1) bribes are offered multiple times or bribes are offered to multiple people; (2) State employees offering bribes; (3) Offering bribes in key national projects or major projects; (4) Offering bribes for the purpose of seeking promotions or adjustments to positions or ranks; (5) Offering bribes to supervision, administrative law enforcement, or judicial personnel; (6) Offering bribes and carrying out illegal or criminal activities in areas such as ecology and the environment, finance, production safety, food and drugs, disaster prevention and relief, social security, education, and medical care; (7) Using unlawful gains for bribery". It can be seen from the addition of a large number of aggravating circumstances for the crime of bribery in the latest amendment that the criminal law is constantly increasing the punishment of the crime of bribery. Following the Ninth Amendment to the Criminal Law, which weakens the lenient punishment for bribe-givers who voluntarily confess to bribery before being prosecuted, the relevant content of the latest amendment once again shows that the mainland's concept of "heavy bribery and light bribery" has undergone a complete change. In addition, in the special lenient sentencing circumstance of the original paragraph 2 of Article 390 of the Criminal Law, "the bribe giver voluntarily confesses the bribery before being prosecuted", the latest amendment amends "plays a key role in the investigation of major cases" to "plays a key role in the investigation and breakthrough and the detection of major cases". The above-mentioned amendments add a statutory link to the designation of a bribe giver as "voluntarily confessing to the bribery before being prosecuted", which also relaxes the conditions for applying special lenient sentencing circumstances to the bribe giver to a certain extent.
Third, Article 6 of the latest amendment adds a statutory penalty to the crime of offering bribes to an entity. Before the amendment of the Criminal Law, there was only one statutory penalty for the crime of offering bribes to an entity, that is, "fixed-term imprisonment of not more than three years or criminal detention and a fine". On this basis, the latest amendment adds another level of statutory punishment, which specifically reads "fixed-term imprisonment of not less than three years but not more than seven years, and a fine". It is worth noting that the crime of offering bribes to a unit and the crime of accepting bribes by a unit are co-offenders, but after the amendment, the statutory maximum penalty for the crime of offering bribes to a unit is seven years imprisonment, while the statutory maximum sentence for the crime of accepting bribes by an entity is 10 years imprisonment. In the author's opinion, the legislative provision that the statutory maximum penalty for the crime of offering bribes by a unit is lower than the statutory maximum penalty for the crime of accepting bribes by a unit is reasonable to a certain extent. In a bribery-giving relationship, the bribe-taker often occupies a dominant position and often plays a greater role than the bribe-giver in the bribery-giving relationship. Therefore, the statutory penalty for the crime of accepting bribes should be higher (or at least not lower) than the corresponding crime of bribery, that is, the statutory maximum penalty for the crime of accepting bribes by an entity is higher than the statutory maximum penalty for the crime of offering bribes by a unit, and the amendment to the Criminal Law has a certain degree of reasonableness.
Fourth, Article 7 of the latest amendment amends the statutory penalty for the crime of offering bribes by an entity. The latest amendment amends the first level of the statutory penalty for the crime of offering bribes by a unit in Article 393 of the Criminal Law from "to fixed-term imprisonment of not more than five years or short-term detention and a fine" to "to be sentenced to fixed-term imprisonment of not more than three years or short-term detention and to be fined". At the same time, the latest amendment adds a statutory penalty to the crime of offering bribes by a unit, which specifically reads "a fixed-term imprisonment of not less than three years but not more than ten years, and a fine". In the author's opinion, the latest amendment to raise the statutory maximum penalty for the crime of offering bribes by a unit is a concrete implementation of the spirit of the policy of comprehensively and strictly cracking down on the crime of bribery. It is worth noting that the statutory maximum penalty for the crime of offering bribes by an entity is still far lower than the statutory maximum penalty for bribery by a natural person after the amendment. There is a view that: "In order to better achieve the legislative purpose of unit crimes, it is also appropriate to unify the statutory punishment allocation for unit crimes and natural person crimes." According to those who hold this view, the criminal law should increase the statutory maximum penalty for the crime of offering bribes to life imprisonment (the same as the statutory maximum penalty for the crime of bribery). In the author's opinion, the punishment for crimes committed by natural persons in the current Criminal Law is generally on the heavier side, and crimes committed by units are like a platform for mitigating severe punishments. Therefore, it is not appropriate for the Criminal Law to completely unify the statutory punishment allocation for crimes committed by units and crimes committed by natural persons. The latest amendment is scientific and reasonable to adjust the statutory penalty for the crime of offering bribes by an entity under Article 393 of the Criminal Law.
2. The application of law to the amendments to the Criminal Law (12).
The latest amendments to the individual crimes in the original Criminal Law will inevitably give rise to a series of new issues in the application of the Criminal Law. The author believes that at a time when criminal legislation is becoming more and more active, we should highlight the implementation of the principle of "modesty of criminal law" in criminal justice. Specifically, the retroactivity of the latest amendments, statutory penalties, the subject of the crime, and the aggravating circumstances can be studied.
(1) The retroactivity of the amended content of the latest amendments
Each amendment to the Criminal Law is promulgated and involves the issue of the choice between the amended Criminal Law provisions and the original Criminal Law provisions (i.e., the retroactivity of the Criminal Law). As we all know, the principle of "starting with the old and treating it lightly" is the principle of retroactivity expressly stipulated in Article 12 of the Criminal Law of the Mainland. Although the principle of "starting with the old and treating it lightly" has been recognized in criminal law theory and judicial practice, its specific application in practice may still cause many controversies. The retroactivity issues involved in the latest amendments mainly focus on two aspects: individual crimes, charges and statutory penalties. In the author's opinion, the new offences added by the latest amendment do not have retroactive effect. At the same time, whether the latest amendment adjusts the statutory sentence for individual crimes has retroactive effect needs to be specifically judged according to the severity of the sentence.
First, the new offences added by the latest amendment cannot be retroactive. Charges refer to the provisions and descriptions of the specific circumstances of the crime in the provisions of the Criminal Law, and their content is usually an explanation of the conditions that constitute the crime. Specifically, the charges can be divided into two categories: one is a description of the conditions for the establishment of a specific crime (basic charges), and the other is a description of the conditions for the application of an aggravating or mitigating statutory sentence (aggravating or mitigating crimes). The latest amendment adds the relevant content of the subject of the crime to the crime of illegally operating the same type of business, the crime of illegally making profits for relatives and friends, and the crime of favoritism and malpractice to discount shares at a low price, and sell the assets of a company or enterprise, which is an element of the crime that adds the elements of the crime; The latest amendment adds "receiving services" and "providing services" to the crime of illegally making profits for relatives and friends, which is a new type of conduct added to the original crime; The latest amendment adds seven aggravating circumstances to the crime of offering bribes, which is a new aggravating offense. In the author's opinion, none of the above three crimes added by the latest amendment can be retroactive. The reason is that before the amendment of the Criminal Law, only relevant personnel in state-owned units could be convicted of illegally operating the same type of business, illegally making profits for relatives and friends, and selling company or enterprise assets for personal gain. Personnel within other companies, enterprises, and other private enterprises who carry out the above-mentioned acts of breach of trust cannot constitute a crime in accordance with the provisions of the original Criminal Law. In accordance with the principle of "starting with the old and treating it lightly", the latest amendment adds the relevant content of the criminal subject to the crimes of illegally operating the same type of business, illegally making profits for relatives and friends, and the crimes of favoritism and irregularities in discounting shares at low prices, and selling company or enterprise assets. In the same way, the original types of criminal acts for the crime of illegally profiting relatives and friends did not include "receiving services" and "providing services". According to the provisions of the original Criminal Law, whether it is a staff member of a state-owned unit or an internal member of a private enterprise, the breach of trust of "accepting services" or "providing services" cannot constitute the crime of illegally making profits for relatives and friends. In accordance with the principle of "starting with the old and treating it lightly", the latest amendment adds the relevant content of "receiving services" and "providing services" to the crime of illegally making profits for relatives and friends, which cannot be retroactive. In addition, the seven aggravating circumstances added to the crime of bribery in the latest amendment are all new crimes under the original individual crimes. Similarly, in accordance with the principle of "starting with the old and treating it lightly", the seven aggravating circumstances added to the crime of bribery in the latest amendment cannot be retroactive. It should be noted that the "non-retroactive" mentioned here specifically refers to acts that have not yet been tried or decided before the latest amendment takes effect, and the relevant content of the latest amendment cannot be applied.
Second, whether the latest amendments adjust the statutory penalties for individual crimes and other content has retroactive effect, it is necessary to make a specific judgment on the severity of the sentence. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Article 12 of the Criminal Law promulgated on December 31, 1997, "lighter punishment" refers to the punishment prescribed by the Criminal Law for a certain crime, that is, the statutory punishment is lighter than that of the Criminal Law before the amendment; The lesser statutory sentence means that the statutory maximum sentence is lighter, and if the statutory maximum sentence is the same, it means that the statutory minimum sentence is lighter; If there are two or more legally-prescribed punishment ranges for a crime provided for in the Criminal Law, the statutory maximum or minimum sentence refers to the maximum or minimum sentence of the legally-prescribed punishment range that shall be applied to the specific criminal act. In principle, when comparing the severity of the statutory punishment, we should take into account the comparison of the principal punishment and the supplementary punishment at the same time. However, the latest amendment only adjusts the principal sentence for the relevant offence, so it is only necessary to compare the severity of the principal sentence to conclude whether the new law is "less punishable". In terms of the number of statutory punishment levels, the latest amendment increases the statutory punishment levels for the crime of accepting bribes by a unit, offering bribes to a unit, and offering bribes to a unit from one to two, and the statutory maximum penalties for the above three crimes have also been increased accordingly. Some people may think that when comparing the severity of the punishment for the crime of accepting bribes by a unit, the crime of offering bribes to an entity, and the crime of offering bribes to a unit before and after the amendment of the law, the maximum penalty of the only level of statutory punishment in the original relevant crime should be compared with the first level of statutory maximum punishment for the relevant crime after the amendment of the Criminal Law. According to the above-mentioned viewpoint of comparing the severity of the sentences, because the amended statutory maximum penalty (three years imprisonment) in the first tier of the crime of accepting bribes by a unit and offering bribes by a unit is lower than the original statutory maximum sentence (five years imprisonment), the amendments to the first level of the statutory penalty for the crime of accepting bribes by a unit and offering bribes by a unit can be retrospective. However, in the author's opinion, when comparing the "severity of the punishment" for the crime of accepting bribes by a unit, the crime of offering bribes to a unit, and the crime of offering bribes to a unit before and after the amendment, we cannot simply compare the statutory maximum penalty of the original relevant crime with the statutory maximum penalty of the first level of the relevant crime after the amendment, so as to conclude that the statutory punishment for the first level of the relevant crime after the amendment of the Criminal Law is "lighter". In fact, we should first combine the two levels of statutory sentences for the amended related crimes, and then compare them with the statutory maximum sentences for the original related crimes, and then draw conclusions about whether the new law imposes lighter sentences. The reasons are as follows: Although the crime of accepting bribes by an entity, the crime of offering bribes to a unit and the crime of offering bribes to a unit only had one level of statutory punishment before the amendment of the Criminal Law, the scope of punishment is essentially the same as that of the relevant crimes after the amendment. For example, the original crime of accepting bribes by a unit was based on "serious circumstances", and after the amendment, the first level of the statutory penalty for the crime of accepting bribes by a unit is still based on "serious circumstances", while the second level of the statutory penalty for this crime is based on "particularly serious circumstances". According to the principle of applying the law to the lesser and more serious, since the circumstances that meet the requirements of "serious circumstances" can already constitute the crime of accepting bribes by a unit before the amendment, the circumstances that meet the requirements of "especially serious circumstances" should constitute the crime of accepting bribes by a unit. In other words, although the crime of accepting bribes by a unit before the amendment did not stipulate the circumstances of "particularly serious circumstances", such circumstances certainly objectively existed, but of course they were included in the circumstances of "serious circumstances" before the amendment. The second level of statutory punishment added by the latest amendment is essentially to divide some of the circumstances in the original level of statutory punishment and provide for a higher statutory sentence. Accordingly, we should not only focus on the comparison between the first level of statutory maximum punishment for the relevant crimes after the amendment and the statutory maximum sentence before the amendment, but should first combine the two levels of statutory punishment after the amendment and then compare it with the statutory maximum sentence in the original relevant crimes. The latest amendment significantly increases the statutory maximum penalty for the relevant crimes, so that the amended criminal law provisions for the crime of accepting bribes by an entity, the crime of offering bribes to an entity and the crime of offering bribes to an entity cannot be retroactive. It should be pointed out that the amended statutory penalty for the crime of offering bribes still retains the three levels of statutory punishment, but the statutory maximum sentence for the first level has been reduced from five years imprisonment to three years imprisonment, so the first level of the statutory sentence for the crime of bribery after the amendment can be retroactive. At the same time, there is no change in the second level of the statutory maximum sentence for the crime of offering bribes before and after the amendment (both are 10 years imprisonment), but the second level of the statutory minimum sentence has been reduced from five years to three years of fixed-term imprisonment, so the second level of the statutory sentence for the crime of offering bribes after the amendment can be retroactive.
(2) Issues concerning the application of the Criminal Law to the content of the latest amendments to the crime of breach of trust
In order to strengthen the criminal control of corruption within private enterprises and at the same time to equally protect the private economy in the criminal law, the latest amendment adds criminal subjects other than the staff of state-owned units to the crimes of illegally operating similar businesses (Article 165), illegally making profits for relatives and friends (Article 166), and favoritism and irregularities in the crime of discounting shares at low prices and selling company or enterprise assets (Article 169). However, the wording of the new criminal subjects in the above three crimes in the latest amendment is not completely consistent. In order to effectively limit the unreasonable expansion of the criminal circle and accurately apply the relevant content of the latest amendment, we should determine the scope of new criminal entities, so as to avoid identifying the breach of trust in ordinary private enterprises as a crime.
1. Understanding and application of "other companies and enterprises".
Along with the continuous deepening of reform and opening up, tremendous changes have also taken place in the structure of the main body of the market and social organizations in the mainland's economic system. In addition to state-owned and collectively-owned companies and enterprises, a large number of non-public enterprises and private non-enterprise units, such as individual and private, wholly foreign-owned, and Sino-foreign joint ventures, have also emerged. Taking the form of ownership as the criterion for classification, the ownership of legally established companies and enterprises in accordance with the Company Law of the People's Republic of China (hereinafter referred to as the "Company Law") can be attributed to the state, collectives and private individuals respectively, corresponding to the state-owned economy, the collective economy and the private economy respectively. In articles 165, 166 and 169 of the Penal Code, "other companies and enterprises" is a concept corresponding to "state-owned companies and enterprises". According to the legislative intent of the latest amendment, companies and enterprises other than "state-owned companies and enterprises" fall under the category of "other companies and enterprises". Therefore, "other companies and enterprises" specifically includes collectively and privately owned companies and enterprises. What needs to be particularly emphasized is that after the reform of state-owned enterprises that separated ownership and management rights, a large number of companies and enterprises in which state-owned capital holds or holds shares have emerged on the mainland. If the internal personnel of a state-controlled or state-owned shareholding enterprise carry out the relevant breach of trust, shall it be regulated in accordance with the provisions of Article 165, Article 166 and Article 169 of the Criminal Law, or in accordance with the provisions of Article 2 of the above-mentioned provisions? It can be seen that the characterization of whether a state-controlled or state-owned shareholding enterprise is "other companies or enterprises" is directly related to the specific application of law in judicial practice, and it is urgent to clarify it.
There has been controversy over the characterization of state-controlled and state-owned shareholding enterprises. At present, three main viewpoints have been formed: "sole proprietorship", "equity participation" and "holding". The "sole proprietorship theory" holds that "state-owned companies and enterprises" can only be wholly owned by institutions or departments authorized by the state to invest in accordance with the Company Law. The "shareholding theory" holds that all enterprises with state-owned capital investment, regardless of the proportion of Chinese capital (or shares) of the enterprise, should be recognized as "state-owned companies and enterprises". The "holding theory" is further divided into "absolute control theory" and "relative control theory". The "absolute control theory" holds that among the mixed-ownership companies or enterprises jointly operated by state-owned capital and other ownership capital, only companies or enterprises with state-owned assets accounting for more than 50% (excluding 50%) are classified as "state-owned companies or enterprises"; The "relative control theory" holds that as long as state-owned assets account for more than 30% of the company, it is a "state-owned company or enterprise". The author agrees with the "equity participation theory". The reasons are as follows: Against the backdrop of the state's vigorous promotion of economic structural reform, a mixed-ownership economy in which state-owned capital and other ownership capital are jointly operated is bound to be the trend of the times. Judging from the relevant historical evolution, the relevant definitions of the public-owned economy in the Constitution of the mainland have been revised many times, such as "state-owned enterprises", "enterprises owned by the whole people" and "state-owned enterprises". It can be seen from this that at different stages of historical development, the specific manifestations of the public-owned economy will also undergo certain changes. In the era of the planned economy, "state-owned companies and enterprises" of course only included enterprises wholly owned by state-owned capital. In the era of market economy, the scope of "state-owned companies and enterprises" should be expanded along with the activity of state-owned capital. In the author's opinion, "state-owned companies and enterprises" should include all companies or enterprises wholly owned by the state or with participation in capital contribution. It should be emphasized that the latest amendment has completely covered all forms of ownership of companies and enterprises through the relevant provisions on "state-owned companies and enterprises" and "other companies and enterprises". Whether it is a "state-owned company or enterprise" or "other company or enterprise", the relevant breach of trust by its internal personnel may constitute the crime of breach of trust such as illegally operating the same type of business. Because the economic losses caused by the relevant crime of breach of trust are essentially borne by the company and the ownership entity behind the enterprise, as long as there is state-owned capital to contribute to the enterprise, it is possible that the relevant national interests will be damaged. Therefore, it is not inappropriate to designate wholly state-owned enterprises, state-owned shareholding enterprises, and state-controlled enterprises as "state-owned companies or enterprises" in the crime of breach of trust such as illegally operating the same type of business. Companies and enterprises other than "state-owned companies and enterprises" fall under the category of "other companies and enterprises". In addition, although the latest amendment adds relevant provisions on the criminal liability of insiders of "other companies and enterprises", the setting of statutory penalties is completely consistent with that of insiders of "state-owned companies and enterprises". In this regard, framing the scope of "state-owned companies and enterprises" in these crimes with the "shareholding theory" will not bring about an imbalance in sentencing.
To sum up, "state-owned companies and enterprises" refers to all wholly state-owned enterprises, state-owned shareholding enterprises and state-controlled enterprises, and the latest amendment adds "other companies and enterprises" to the crimes of illegally operating similar businesses, illegally making profits for relatives and friends, and favoritism and irregularities in the crimes of discounting shares at low prices and selling companies and enterprise assets, which only includes collective enterprises and private enterprises and other companies and enterprises that do not have any state-owned capital contribution.
2. The understanding and application of "violation of laws and administrative regulations".
In the context of the continuous expansion of the scale of statutory offenders, it is difficult for the provisions of the Criminal Law to describe all the provisions of the preceding law by stating the crimes, and can only add a large number of constituent elements such as "violation of state regulations", "violation of relevant state regulations" and "violation of laws and administrative regulations" to the individual crimes of the sub-provisions. Article 96 of the Criminal Law only provides a precise definition of "violation of state regulations", that is, the term "violation of state regulations" as used in this law refers to violations of laws and decisions formulated by the National People's Congress and its Standing Committee, administrative regulations, administrative measures prescribed by the State Council, and decisions and orders issued. Theoretically, it is generally believed that "relevant state regulations" are not limited to laws and administrative regulations, but may also include local regulations, departmental rules and local government rules. As long as departmental rules do not contradict relevant laws and administrative regulations, they can be regarded as "relevant state provisions". In the author's opinion, the connotations of "violating state regulations", "violating relevant state provisions" and "violating laws and administrative regulations" in the criminal law are not exactly the same, otherwise it is impossible for the criminal law to make different expressions. Taking "violation of state regulations" as the benchmark, the scope of "violation of relevant state regulations" is larger than that of "violation of state regulations", and the scope of "violation of laws and administrative regulations" is smaller than that of "violation of state regulations". In order to distinguish between "violation of state regulations" and "violation of laws and administrative regulations", we should adopt the narrowest concept of "laws and administrative regulations". Therefore, "violation of laws and administrative regulations" only refers to violations of laws formulated by the National People's Congress and its Standing Committee and administrative regulations formulated by the State Council, and does not include decisions formulated by the National People's Congress and its Standing Committee, administrative measures prescribed by the State Council, and decisions and orders issued.
3. The understanding and application of "causing significant losses to the interests of the company and the enterprise".
At present, there is no judicial interpretation document that supports the specific applicable standards for the crimes related to the latest amendment. The second paragraph added in the latest amendment to the crime of illegally operating the same type of business, the crime of illegally making profits for relatives and friends, and the crime of favoritism and irregularities in the crime of discounting shares at a low price and selling the assets of a company or enterprise all takes "causing major losses to the interests of the company or enterprise" as the constitutive element of the crime. In other words, the relevant personnel of "other companies and enterprises" may only constitute the above-mentioned crimes if they meet the condition of "causing significant losses to the interests of the company or enterprise". We can determine the applicable standard of "causing major losses to the interests of the company or enterprise" from the following two aspects: on the one hand, whether the criterion for criminalizing "causing major losses to the interests of the company or enterprise" can directly refer to the relevant standard of "causing major losses to the interests of the state"; On the other hand, whether the calculation method of the specific amount of loss in "causing significant losses to the interests of the company or enterprise" can directly refer to the method of calculating the amount of losses caused by the relevant breach of trust by the staff of a state-owned unit.
In the author's opinion, the criterion for the criminalization of "causing major losses to the interests of companies and enterprises" can directly refer to the relevant provisions of "causing major losses to national interests". In the era of the planned economy and in the early days of reform and opening up, the scale of state-owned units and the size of their economies were undoubtedly far greater than those of private enterprises. However, after more than 40 years of deepening the implementation of reform and opening up, the non-public economy, such as private enterprises, has achieved historic development. The size and economic size of state-owned units no longer occupy an absolute advantage, and it is difficult to assert at the macro level that the scale and economic volume of state-owned units are necessarily better than those of private enterprises. Because the production models and operating advantages of the public, private, and mixed-ownership economies are different, the economies under multiple ownership systems are showing a momentum of development going hand in hand. In the case that the amount of losses caused by the breach of trust is the same, the economic losses caused by the relevant acts to the state-owned units or private enterprises must also be the same, and the magnitude of the social harm should also be the same, so that it is not improper to keep the relevant standards of criminalization consistent. We cannot distinguish between crimes and non-crimes and minor crimes that cause the same economic losses based solely on the different ownership systems of enterprises. Since the legislative purpose of the latest amendment to amend the relevant crimes is to equally protect the private economy, we should implement this legislative purpose in the process of interpreting and applying the criminal law. It is worth noting that Article 165, Paragraph 1 of the Criminal Law stipulates that the criterion for the crime of illegally operating the same type of business is "obtaining illegal benefits and the amount is relatively large", while the criterion for criminalization stipulated in Article 165, Paragraph 2 of the latest amendment is "causing significant losses to the interests of the company or enterprise". Generally speaking, the illegal benefits obtained by the perpetrator cannot be equated with the economic losses suffered by the company or enterprise. However, due to the particularity of the crime of illegally operating the same type of business, the Criminal Law can only use "obtaining illegal benefits" to describe the objective damage caused by the breach of trust committed by the internal personnel of a state-owned unit. In fact, "obtaining illegal benefits" and "causing major losses to the interests of companies and enterprises" are two sides of the same coin. Article 165, paragraph 1, of the Criminal Code, which stipulates that "obtaining illegal benefits in a relatively large amount", is essentially the same as "causing significant damage to the interests of the State" under articles 166, paragraph 1, and article 169, paragraph 1, of the Criminal Code. Therefore, in the crime of illegally operating the same type of business, the criterion for "causing major losses to the interests of the company or enterprise" can be referred to the criterion for "obtaining illegal benefits and the amount is relatively large". Specifically, according to the Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II), the perpetrator of the crime of illegally operating the same type of business "obtains illegal benefits, and the amount is more than 100,000 yuan, shall be filed and prosecuted"; In the crime of illegally making profits for relatives and friends, the perpetrator "causes direct economic losses to the state in the amount of 100,000 yuan or more", and a case shall be filed for prosecution; In the crime of favoritism, fraud, discounting shares at a low price, or selling company or enterprise assets, the perpetrator "causing direct economic losses to the state in the amount of 300,000 yuan or more" shall be prosecuted. To sum up, in the crime of illegally operating the same type of business and illegally making profits for relatives and friends, if the perpetrator causes direct economic losses of more than 100,000 yuan to the company or enterprise, a case should be filed for prosecution; In the crime of favoritism, fraud, and the sale of company or enterprise assets at a low price, where the perpetrator causes direct economic losses to the company or enterprise in the amount of 300,000 yuan or more, a case shall be filed for prosecution. In addition, the method of calculating the specific amount of losses caused by the relevant breach of trust by the internal personnel of a private enterprise "causing significant losses to the interests of the company or enterprise" may also directly refer to the existing provisions on the calculation method of the amount of losses caused by the relevant breach of trust by the staff of a state-owned unit.
(3) The latest amendment adds a question on the application of the Criminal Law to the aggravating circumstances for the crime of offering bribes
The latest amendment adds seven aggravating circumstances to the crime of bribery. As is well known, according to article 62 of the Criminal Code, criminals with aggravating circumstances shall be sentenced within the limits of the statutory sentence (which cannot exceed the maximum sentence within the range of sentences that should be imposed). On this basis, we should further clarify the specific standards for the application of the seven aggravating circumstances for the crime of bribery.
The first aggravating circumstance is the understanding and application of "multiple bribes or bribes to multiple people". The current Criminal Law stipulates a large number of crimes in which "multiple illegal and criminal acts" are used as elements of the crime or aggravating circumstances, and a large number of crimes in which "multiple people" are the targets of the crime. For example, "rape of a woman, adultery with multiple underage girls" (Article 236), "molesting multiple children or multiple times" (Article 237), "multiple robberies" (Article 263), "multiple thefts" (Article 264), "multiple robberies" (Article 267), "repeated extortion" (Article 274), "repeatedly disrupting the work order of state organs", "repeatedly organizing and financing illegal gatherings of others" (Article 290), "repeatedly gathering crowds to fight" (Article 292), and "repeatedly participating in crowd fights" (Article 292) Assembling a crowd to commit sexual immorality (Article 301), "repeatedly organizing others to illegally cross the national (border) border" (Article 318), etc. It can be seen from this that repeated offenses are not an accidental and isolated legislative phenomenon, but a legislative practice with a certain degree of universality. Because the current Criminal Law stipulates a large number of repeat offenders, the criteria for determining repeat offenders in judicial practice are also different. With regard to the criteria for determining "multiple times", the relevant judicial interpretations generally provide for it in the form of "time + times" or "times". For example, "multiple thefts" means more than 3 thefts in 2 years, while "multiple robberies" means more than 3 robberies. By combing through the provisions of the Criminal Law and relevant judicial interpretations, it is not difficult to find that in judicial practice, the criteria for determining "multiple times" are generally "two times within one year" (for child molestation, etc.), "three times within two years" (for theft, extortion, etc.), and "three times" (for robbery, etc.). At the same time, in judicial practice, the criteria for determining "multiple persons" are generally "two or more persons" and "three or more persons". In the author's opinion, we should adopt the "time + times" model for the determination of "multiple bribes", and take "more than 3 bribes within 2 years" as the specific criteria for determining "multiple bribes". At the same time, "bribing multiple people" should mean "offering bribes to three or more people". As mentioned above, the social harmfulness of the crime of offering bribes and the crime of accepting bribes are not the same, and the statutory penalty for the crime of offering bribes should be lower than that for the corresponding crime of accepting bribes. On the premise that the latest amendments have increased the punishment for the crime of bribery, we should limit the scope of application of the aggravating circumstances for the crime of bribery as much as possible. Judicial interpretations and other normative legal documents shall simultaneously limit the criteria for determining "multiple bribes" in terms of time and frequency, and limit the criteria for determining "bribes offered to multiple people" in terms of the number of times.
The second aggravating circumstance, "bribery by state functionaries", is understood and applied. Since article 93 of the Penal Code clearly defines the scope of "State functionary", there is less disagreement between the content of this item in theory and in practice. In the author's opinion, the understanding of "bribery by state functionaries" can be directly applied in accordance with the provisions of Article 93 of the Criminal Law.
The third aggravating circumstance is "bribery in key national projects or major projects". There is no authoritative definition of national key projects and major projects in the Criminal Law and other departmental laws. In the "Archives of Major National Projects" and other documents, the mainland has for the first time comprehensively sorted out the major projects in the main areas of national economic and social development since the beginning of reform and opening up. Therefore, the above-mentioned literature can be used as an important reference basis for the identification of "national key projects" in criminal law. In addition, the scope of "major national projects" is extremely wide, and almost all activities involving investment, development, construction and other fields may fall into the scope of project construction. However, relevant projects can be divided into national projects (with full or participation in the investment by the state) and major local projects (invested by local governments or the private sector). In the author's opinion, "national key projects and major projects" should only include national-level projects and projects, and not include major local projects and projects. The above recognition criteria are in line with the meaning of "national key projects and major projects".
The fourth aggravating circumstance is the understanding and application of "bribery for the purpose of seeking positions, rank promotions, or adjustments". The promotion and adjustment of civil servants shall strictly follow the provisions of the "Civil Servants Law of the People's Republic of China" and its supporting regulations. In the author's opinion, the scope of "bribery for the purpose of seeking positions, rank promotions, or adjustments" should be limited to seeking the positions of state functionaries.
The fifth aggravating circumstance is the understanding and application of "bribery of supervision, administrative law enforcement, and judicial personnel". In the author's opinion, "supervision, administrative law enforcement, and judicial personnel" refers to civil servants engaged in public affairs in supervision organs, administrative law enforcement organs, and judicial organs, and does not include relevant personnel in the above-mentioned organs who do not have the status of civil servants but are engaged in auxiliary work. For example, police officers are members of the judiciary, while auxiliary police officers are not. "The use of the concept of 'civil servant' in the relevant legislation such as the Civil Servants Law in the mainland, and the use of the concepts of administrative organ staff and administrative law enforcement personnel in other administrative legislation, the lack of effective cohesion and cooperation between the legislation of administrative organizations and the legislation of administrative acts directly leads to the contradiction between the interpretation of the law and the doctrine of mechanical legalism." Therefore, the concept of administrative law enforcement personnel should be harmonized with the concept of "civil servant".
The sixth aggravating circumstance is the understanding and application of "offering bribes and carrying out illegal and criminal activities in the fields of ecology and environment, finance, production safety, food and drugs, disaster prevention and relief, social security, education, and medical care". The content of this item may mainly involve disputes in the following two aspects: first, whether the word "etc" is a catch-all provision, and second, how to clarify the connotation and function of "carrying out illegal and criminal activities". In the author's opinion, the eight major areas represented by "ecological environment, finance, production safety, food and drugs, disaster prevention and relief, social security, education, and medical care" have actually covered major fields such as politics, economy, and people's livelihood, and there is no need for the Criminal Law to make sweeping provisions in this item. At the same time, if the word "etc." is understood as a catch-all provision, then it will be difficult to clarify the specific content of the catch-all provision. In addition, "carrying out illegal and criminal activities" is not only a constitutive element that must be met for the application of this subparagraph, but also its content should specifically refer to the commission of other illegal and criminal activities other than the crime of bribery. Otherwise, as long as the perpetrator of bribery in the above eight areas is committed, he will be punished heavily, which will inevitably lead to the excessive scope of application of this provision. Therefore, we want to limit the scope of application of this item by using the provision of "committing illegal and criminal activities". This provision can only be applied if it meets the requirements of illegal and criminal activities other than bribery and bribery in the above eight areas.
The seventh aggravating circumstance is the understanding and application of "using unlawful gains for bribery". There is a view that although there are differences in the expressions of "criminal proceeds" and "illegal gains" in the Criminal Law, their connotations should be the same, that is, they are both the proceeds of illegal acts that have reached the level of crime. Those who hold this view further argue that the illegal gains of criminals specifically include the proceeds of crime, the remuneration of crime and the things born of crime. In the author's opinion, we should distinguish between "illegal gains", "criminal gains" and "disciplinary gains" in criminal law. In its literal sense, "unlawful gains" include both the proceeds of acts in violation of precedent laws such as the Civil Code and administrative regulations, as well as the proceeds of criminal acts committed in violation of the Criminal Law. "Proceeds of crime" refers only to proceeds of criminal acts committed in violation of criminal law; "Proceeds from violation of discipline" refers to the proceeds of committing acts that violate Party discipline and government discipline. In criminal law, there is a phenomenon of "criminal proceeds" and "illegal gains" being used in general. For example, article 64 of the Criminal Law stipulates that all property illegally obtained by a crime shall be recovered or ordered to be returned. In understanding and applying the term "use of unlawful proceeds for bribery", we should use the narrow concept of "unlawful gains" (i.e., equivalent to the concept of "proceeds of crime"). Understanding "unlawful gains" as "criminal proceeds" is not only highly consistent with the purpose of the Criminal Law to punish crimes, but also effectively limits the scope of application of this item. Therefore, we can understand the "use of illegal proceeds for bribery" as the use of criminal proceeds such as the proceeds of crime, the remuneration of crime, and the things born of crime.
III. Legislative and Judicial Reflections Triggered by the Amendment to the Criminal Law (12).
With the successive promulgation of the amendments to the Criminal Law, the positive concept of criminal law and the expansion of the functions of the criminal law have provided a new path for the governance of crime in the mainland, but it has also brought new challenges such as the governance of minor crimes and the criminalization of criminal sanctions. Since the Amendment (VIII) to the Criminal Law, the concept of positive criminal law has begun to be affirmed in the criminal legislation activities of the mainland. The positive legislation referred to in the positive criminal law concept is not only reflected in the setting of crimes, but also in the allocation of criminal punishments, that is, legislators tend to adopt heavy criminalization to strengthen citizens' awareness of abiding by the law. Therefore, the latest amendment adds the relevant content of the crime of illegally operating the same type of business, the crime of illegally making profits for relatives and friends, the crime of favoritism and fraud, the crime of discounting shares at a low price, and the crime of selling company or enterprise assets (some crimes also add types of conduct), as well as the relevant content of raising the statutory penalty for bribery crimes, which can be regarded as a concrete practice of the positive criminal law concept. There is a view that the positive view of criminal law should not only actively promote criminalization at the legislative level, but also eliminate the problem of insufficient supply of norms through various interpretation principles at the criminal justice level. There are also differing views that the "positive" position is limited to the active expansion of the criminal circle at the legislative level, and does not include the active expansion of the scope of application of the crime at the judicial level. There is also a view that although new crimes can be actively created at the legislative level, the application of crimes needs to be restricted through judicial practice (positive legislation, negative justice). In the author's opinion, the positive view of criminal law should be limited to criminal legislative activities, and in criminal justice activities, we should establish scientific and reasonable standards for the application of criminal law, but we should not deliberately limit the scope of application of relevant crimes with bias (i.e., "judicial passivity"). It is undeniable that although the positive view of criminal law is suspected of violating the principle of modesty in criminal law, in fact, the concept of positive criminal law has become a concept that can be implemented at the same time as criminal legislation and criminal justice activities. The so-called "positive legislation, negative judiciary" view is just a beautiful vision, which lacks the possibility of realizing it in practice. This is because, under the requirement of the principle of legality, criminal justice activities cannot violate the provisions of the criminal law by criminalizing acts that have already constituted crimes. Once the latest amendment expands the scope of punishment for relevant individual crimes, it is impossible to reverse the scope of punishment that has been expanded by the latest amendment in criminal justice activities, otherwise it will be a violation of the principle of legality of crimes. Taking the crime of illegally operating the same type of business as an example, the latest amendment expands the criminal circle after expanding the criminal subject of the crime of illegally operating the same type of business to "directors, supervisors, and senior managers of other companies and enterprises". However, the expansion of the criminal circle cannot replace or eliminate the judgment of guilt and innocence. At the level of criminal justice, we can only complete the judgment of guilt and innocence on the basis of the expansion of the criminal circle and try to conform to the basic principles of criminal law, and cannot exonerate "directors, supervisors, and senior managers of other companies and enterprises" who have already constituted this crime. Thus, as long as criminal legislation expands the circle of crime, criminal justice can only be implemented in accordance with the principle of legality. The so-called "judicial passivity" simply cannot eliminate the legal consequences of "legislating positively" to expand the criminal circle. In other words, under the premise that "positive legislation" has already expanded the criminal circle, the so-called "judicial passivity" cannot have the actual effect of limiting the criminal circle. In fact, criminal justice activities on the mainland not only fail to take the initiative to limit the scope of application of relevant crimes, but even tend to expand the scope of application of relevant crimes with a more positive attitude. Therefore, in order to limit the excessive expansion of the scope of criminal punishment and avoid the excessive impact of criminal sanctions on citizens' basic freedoms, we should reflect on the relevant content of the latest amendment from the perspective of criminal legislation.
At the level of criminal legislation, the relevant content of the latest amendment mainly reflects the criminal law's attitude towards the severe punishment of the crime of breach of trust and bribery by the internal personnel of private enterprises. At the level of criminal justice, the judicial practice department will inevitably intensify the crackdown on the crime of breach of trust and bribery by the insiders of private enterprises in accordance with the latest legislative trends. The author believes that overcorrection cannot be overdone, and we should delineate scientific and reasonable application standards for the relevant content of the latest amendments through judicial interpretations and other normative legal documents. In the author's opinion, judicial personnel should remain objective and neutral in the process of adjudicating cases, and should not have a subjective bias of positive conviction or passive incrimination. At the same time, judicial personnel shall strictly follow the principles of modesty and proportionality in the application of the Criminal Law, and in general, try not to use expanded interpretations to expand the scope of application of the Criminal Law. The essence of the principle of modesty and proportionality in criminal law lies in restricting state power and rationally distributing state power and individual's basic rights, which embodies the rule of law idea of human rights protection and power constraints. In many cases, the main reason why judicial decisions give people a sense of injustice is that they do not truly understand and comprehend the fundamental purpose and purpose of the provisions of the criminal law, but interpret the provisions of the criminal law too formally, and even deviate from the emotional needs of the public and the basic rules of social ethics, which violates the substantive justice of the criminal law. Therefore, we should continue to find a new balance between the criminal law actively expanding the criminal circle and the protection of human rights. Specifically, we can strike a balance between the fight against crime and the protection of human rights in terms of criminal legislation and criminal justice. At the level of criminal legislation, the state may appropriately slow down the promulgation and implementation of amendments to the Criminal Law. In the recent amendments to the Criminal Code, the trend of emotional legislation and phenomenon legislation has gradually become prominent. The addition of a large number of misdemeanors has led to a shift in the evaluation of wrongfulness in the criminal law from "infringement" and "serious harm" to "risk" or "possibility of infringement". At a time when the concept of positive criminal law occupies the mainstream position, only by reducing the activity of criminal legislation can we fundamentally put an end to the phenomenon of undermining civil liberties due to excessive expansion of power. At the criminal justice level, the Supreme People's Court and the Supreme People's Procuratorate shall formulate scientific and reasonable standards for the application of the Criminal Law on the basis of objective reality. At the same time, the staff of judicial organs at all levels should abandon the subjective bias of positive criminalization or passive criminalization, and prudently understand and apply the provisions of the Criminal Law with an objective and neutral attitude.
In addition to striking a balance between the protection of legal interests and the protection of human rights, we should also reflect on the issue of asymmetric legislation within the provisions of the criminal law. "Asymmetric criminal law legislation refers to the criminal law making different or dissimilar provisions on the same or similar circumstances, including vertical asymmetric legislation and horizontal asymmetric legislation on the relationship between crime and punishment." It is worth noting that the first seven articles of the latest amendment all relate to the adjustment of asymmetrical criminal law legislation. As mentioned above, the latest amendment adds criminal subjects other than state-owned units to the crimes of illegally operating similar businesses, illegally making profits for relatives and friends, favoritism, and selling company or enterprise assets at low prices. In addition, the latest amendment adjusts the statutory penalties for the crimes of accepting bribes by units, offering bribes, offering bribes to units, and offering bribes to units, which is a manifestation of the symmetrical legislation on the statutory punishment range for bribery and bribery crimes (achieving vertical symmetrical legislation). In fact, what is emphasized behind symmetrical legislation is the equal protection of legal interests. It should be noted that there are still other asymmetrical legislation in the current Penal Code. For example, the subject of the crime of dereliction of duty in Chapter IX of the Criminal Law is all state functionaries such as "state organ functionaries", "judicial personnel" and "administrative law enforcement personnel", and does not include other non-state functionaries. However, in areas of people's livelihood such as electric power and financial fields such as banking, the non-public economy has occupied a certain market share. If the internal personnel of private enterprises in the above-mentioned major fields such as people's livelihood and finance abuse their power or neglect their duties, it is very likely to lead to major losses to public property, the interests of the state and the people. Therefore, in terms of the symmetrical protection of the interests of the state and the people, it seems that non-state functionaries working in important fields can also be the subject of crimes of malfeasance. In short, criminal law legislation and judicial activities should always adhere to the path of socialist rule of law with Chinese characteristics, be people-centered, and constantly carry out reflection and revision. Therefore, in the future revision of the Criminal Law, the Criminal Law should continue to focus on avoiding the phenomenon of asymmetrical legislation in which the same or similar circumstances are punished differently or differently.
Source: Journal of Finance and Economics Law, Issue 3, 2024, pp. 129-144
Author: Liu Xianquan is a Distinguished Professor of East China University of Political Science and Law, a chair professor of "Jingtian Scholar", and a professor of the School of Criminal Law
![The Third Branch of the Municipal People's Procuratorate undertook a special lecture on the interpretation of the Criminal Law Amendment (12) of the "Beijing Inspection Practice Forum".[fig]](data:image/gif;base64,R0lGODlhAQABAIAAAP///wAAACwAAAAAAQABAAACAkQBADs=)