Source: Website of the Central Commission for Discipline Inspection and the State Supervision Commission
Central Commission for Discipline Inspection State Supervision Commission website Cheng Wei
Special guests
Lai Fangyu is a cadre of the Ninth Examination and Investigation Office of the Chongqing Municipal Commission for Discipline Inspection
Zhu Jianming Director of the Fourth Discipline Inspection and Supervision Office of the Discipline Inspection Commission of the Jiulongpo District Discipline Inspection Commission of Chongqing Municipality
Song Yang Cadre of the Case Trial Room of the Discipline Inspection Commission of Jiulongpo District, Chongqing Municipality
Zhou Guanchang Deputy Director of the First Procuratorial Department of the People's Procuratorate of Jiulongpo District, Chongqing
Chu Haotian, Judge of the Criminal Division of the Jiulongpo District People's Court of Chongqing Municipality
Editor's Note
This is a case in which more than 70 million yuan of state-owned funds were taken through bribery, and the bribe-givers were finally investigated and punished. In this case, what was the main practice of investigating Feng Yue and Feng Haijun for accepting bribes and paying bribes together? What are the characteristics of Feng Haijun's bribery crime? What policies are highlighted when advising bribers? In judicial practice, how to correctly distinguish between the crime of bribery and the crime of bribery by units, and what are the factors that affect the sentencing of the crime of bribery? We specially invite the staff of relevant units to analyze it.
Basic facts of the case:
In 2015, Feng Haijun, the actual controller of Yunnan Xishuangbanna Gongyu Coffee Development Co., Ltd. (hereinafter referred to as "Gongyu Company"), asked Feng Yue, chairman of Chongqing Energy Investment Group Co., Ltd. (hereinafter referred to as "Chongqing Energy Group"), to cooperate in the coffee bean trade. With the support of Feng Yue, Chongqing Energy Group decided to carry out coffee bean trading with Gongyu Company by its wholly-owned subsidiary Chongqing Zhongliangshan Coal and Electric Co., Ltd. (hereinafter referred to as "Zhongliangshan Company"), and agreed that in 2016, Zhongliangshan Company would acquire 3,000 tons of coffee beans from Gongyu Company, and at the same time entrust Gongyu Company to sell the above coffee beans, and at the end of the year, Gongling Company would return the sales amount and 15% profits to Zhongliangshan Company; in 2017, the coffee bean purchase and sale contract continued, and the number of storage increased to 5,000 tons. To this end, Feng Haijun and Feng Yue agreed to hold 50% of the shares of Gongyu Company in the name of Feng Yue's relatives and specific related person Wang, and Wang would serve as the legal representative of Gongyu Company. At the same time, Wang transferred the purchase of shares to the original shareholders of Gongyu Company and then immediately withdrew the full amount of the purchase funds, thus forging the illusion of capital contribution to purchase shares. In April 2016, Wang accepted a gratitude fee of 2.5 million yuan from Feng Haijun on the grounds of withdrawing from the shareholding.
From 2016 to 2017, in the process of performing the agreement, in order to cover up the fact that the coffee bean collection and storage was seriously insufficient to Zhongliangshan Company and continue to arbitrage and embezzle the coffee bean payment to other projects such as real estate development under his personal name, Feng Haijun asked Hu Mou, the first person in charge of the coffee bean collection and storage in Yunnan, and the second person in charge, Li Mou, to continue to implement the second year's storage contract through false storage and through a fictitious account erasure agreement, in order to cover up the fact that the coffee bean collection and storage was seriously insufficient to Zhongliangshan Company, and to continue to implement the second year's storage contract through a fictitious account erasure agreement. And the fact that Zhongliangshan Company actually only bought a small number of coffee beans was covered up by Zhongliangshan Company. In 2016 and 2017, Zhongliangshan Company paid more than 53 million yuan and 34 million yuan to Gongyu Company respectively. To this end, Feng Haijun gave Hu and Li a thank-you fee of 1.4 million yuan and 1 million yuan respectively.
At the end of 2017, because Feng Haijun could not return the sales money and profits of the year's coffee beans as agreed, Zhongliangshan Company found that only 523 tons of coffee beans were left in the warehouse, so it reported the case to the local public security organs in Yunnan. As of the time of the case, Zhongliangshan Company paid a total of more than 87 million yuan to Gongyu Company in two years; only more than 50,000 yuan of funds remained on the account of Gongyu Company, only 523 tons of coffee beans were stored in the warehouse (discounted by more than 9.6 million yuan), and the loss of state-owned funds of Zhongliangshan Company reached more than 78 million yuan.
Investigation and punishment process:
【Case Filing Review and Investigation】 After being designated by the Chongqing Municipal Supervision Commission for jurisdiction, on February 13, 2018, the Jiulongpo District Supervision Commission filed an investigation against Feng Haijun; on March 2, 2018, the Jiulongpo District Supervision Commission took measures to retain him in custody.
On May 21, 2018, the Chongqing Municipal Commission for Discipline Inspection and Supervision filed a case against Feng Yue for review and investigation, and on May 22, took liuzhi measures against him.
【Party Discipline and Government Sanctions】On August 16, 2018, after the meeting of the Standing Committee of the Chongqing Municipal Commission for Discipline Inspection studied and reported to the Chongqing Municipal Party Committee for approval, the Chongqing Municipal Commission for Discipline Inspection gave Feng Yue the punishment of expulsion from the party and dismissal from public office.
On May 18, 2018, the Jiulongpo District Supervision Commission transferred Feng Haijun's suspected bribery case to the Jiulongpo District People's Procuratorate for review and prosecution in accordance with law.
On August 16, 2018, the Chongqing Municipal Commission for Discipline Inspection transferred Feng Yue's suspected crimes to the Chongqing Municipal People's Procuratorate for review and prosecution in accordance with law.
On July 9, 2018, the Jiulongpo District People's Procuratorate filed a public indictment with the Jiulongpo District People's Court for Feng Haijun's bribery.
In October 2018, the Chongqing Municipal People's Procuratorate designated the Fifth Branch of the Chongqing Municipal People's Procuratorate to file a public prosecution with the Fifth Intermediate People's Court of Chongqing Municipality for Feng Yue's crime of accepting bribes.
【First Instance Judgment】On June 24, 2020, the Jiulongpo District People's Court convicted Feng Haijun of bribery in the first instance, sentenced him to 11 years' imprisonment, fined him 2 million yuan, and recovered more than 78 million yuan of illegal gains.
On December 28, 2018, the Fifth Intermediate People's Court of Chongqing Municipality convicted Feng Yue of accepting bribes and sentenced him to 15 years in prison. Feng Yue did not appeal.
【Second-Instance Judgment】On July 13, 2021, the Fifth Intermediate People's Court of Chongqing Municipality upheld the conviction of Feng Haijun for bribery in the first instance, and because Feng Haijun returned more than 78 million yuan in full during the second-instance trial, feng Haijun was sentenced to five years' imprisonment and fined 1 million yuan.
1 What is the main practice of Feng Yue and Feng Haijun to investigate bribery and bribery together? What are the implications?
Lai Fangyu: Feng Yue successively served as the general manager of Chongqing Energy Group, the secretary of the party committee, and the chairman of the board of directors (at the level of the main hall), and on May 21, 2018, he was filed and investigated by the Chongqing Municipal Commission for Discipline Inspection. Feng Yue was very familiar with the operation of the company's enterprises, so through a series of corporatized operations, he tried to cover up the essence of his bribery crime under the cloak of civil and commercial legality. Wang Mou, a specific person of Feng Yue, "invested" in Feng Haijun's company from February 2016 and operated until February 2017 to receive dividends, which on the surface has nothing to do with Feng Yue, but in fact, it is a typical example of accepting bribes in the guise of "shareholding dividends". To solve this case, we must find out two questions: Is Wang Really Funding? Does the 2.5 million yuan he received have anything to do with Feng Yue?
The investigation team first established a bank transaction database of relevant companies and personnel from the close relations of the two parties to the bank and the funds involved in the case. Through massive data analysis, it was found that after Wang transferred his shares, Feng Haijun returned the shares to Wang through other channels; on the third day after Feng Haijun handed over the 2.5 million yuan "dividend payment" to Wang, Feng Yue's wife and daughter-in-law had a huge amount of cash, combined with other evidence to confirm that the 2.5 million yuan actually entered Feng Yue's pocket, and Wang was only Feng Yue's interest spokesman. At the same time, the investigation team found that Feng Haijun diverted most of the coffee bean payment for other purposes, and in-depth field investigation and evidence collection found that the warehouse capacity of Gongyu Company could not collect and store 5,000 tons of coffee beans per year, confirming that Gongyu Company's coffee bean trade was just a cover for Feng Haijun's personal arbitrage of state-owned funds.
After the case was filed, the investigation team expanded the scope of the investigation and insisted on investigating bribery and bribery together. On the one hand, with Feng Haijun as the center of the circle, the bribery case was simultaneously handled, and it was verified that Feng Haijun had paid bribes to Hu, Li and many others many times and caused huge losses of state-owned funds, and transferred them to the judicial organs for criminal responsibility according to law. On the other hand, Feng Yue is used as the center of the circle to find other bribers. After investigation, Feng Yue also accepted bribes of more than 50 million yuan with specific related parties by various hidden means such as false agents to collect "agency fees" and false trade to collect "deposits", and the investigation team resolutely filed a case against the bribe-givers who repeatedly paid bribes and paid huge bribes and transferred them to the judicial organs for criminal liability.
In the course of handling cases, while investigating and handling the crime of bribery in accordance with the law, the investigation team performs its duties of recovering stolen goods and recovering losses as a whole. The first is to promptly fix the evidence that Feng Haijun obtained improper benefits, trace the funds of the Common Language Company, and quickly seal and freeze the assets and accounts involved in the case. Second, in order not to affect the normal operation of Feng Haijun Company, we have smoothed the normal business contact channels of Feng Haijun during the period of retention, prevented the failure of its real estate projects, and laid the foundation for the recovery of its assets in the future. Third, after the case was transferred to the judicial organs, he actively communicated and coordinated with the procuratorial organs and judicial organs, and urged Feng Haijun to return the stolen goods and realize the assets in accordance with the law.
It can be seen from this case that Feng Haijun and other lawless businessmen did not rein in or accept their hands after the Eighteenth National Congress of the Communist Party of China, "hijacked" state functionaries by paying bribes, acted arbitrarily, and obtained huge illegal benefits at a relatively small price, causing major economic losses to the state, undermining the normal market economic order, and polluting the political ecology. Only when discipline inspection and supervision organs grasp the policy and strategy of "investigating bribery and bribery together" from a political height, accurately and effectively crack down on bribery, make bribe-givers pay their due price, shoulder the responsibility of recovering stolen goods and recovering losses, and pursue illegal profits according to law, can they cut off the chain of interests between "hunting" and "being hunted" and promote the realization of both the symptoms and the root causes of corruption.
2 What are the characteristics of Feng Haijun's bribery crime? How to determine the direction of evidence collection and consolidation during the investigation stage?
Zhu Jianming: After the liuzhi of Feng Haijun was executed, the investigation team raised four questions: First, why did Feng Haijun pay bribes? Second, where did the coffee bean payment for the set go? Third, how is the payment transferred? Fourth, is the transfer of payment justified? In the follow-up investigation, the investigation team clarified through evidence collection that Feng Haijun's bribery behavior was an individual bribery rather than a unit bribery investigation and evidence collection direction. After investigation, the main reason why Feng Haijun cooperated with Chongqing Energy Group and Zhongliangshan Company to carry out coffee bean trade was that the real estate development projects and other projects he personally invested in fell into financial difficulties, trying to use state-owned enterprise funds to make up for the capital chain that was on the verge of rupture. The purpose of Feng Haijun's bribery to Feng Yue was to smoothly achieve the coffee bean trade; the purpose of bribing Hu and Li was to help them cover up the fact that the coffee bean collection and storage was seriously insufficient, so as to smoothly arbitrage the payment for the Goods of The Zhongliangshan Company. Secondly, the evidence confirmed that most of the more than 78 million yuan of coffee bean payments taken were embezzled into the accounts of other companies and staff controlled by Feng Haijun personally, and were used for real estate development and other projects and personal expenses under his name. Third, according to Feng Haijun's confession and inquiry and evidence collection, his bribery, arbitrage, and misappropriation were all decided by Feng Haijun without authorization, and the consent of the shareholders of Gongyu Company was not sought, which actually damaged the property rights and shareholders' rights and interests of Gongyu Company as a legal subject. Finally, Feng Haijun actually controls more than a dozen companies, including Gongyu Company and Real Estate Development Company, but these companies are independent legal persons and have no parent-subsidiary, general branch or shareholding relationship with each other.
Combined with the above situation, the investigation team judged and believed that more than a dozen companies actually controlled by Feng Haijun were adopted by Feng Haijun in the management mode of "one word and one word". In the operation and management of the above-mentioned companies that are not subordinate to each other, Feng Haijun mixed the personality and assets of each company with personal personality and assets, and the purpose of his bribery was to sign trade cooperation contracts in the name of the gongyu company, arbitrage the payment for state-owned enterprises, and illegally transfer it to other companies and projects under the actual control of the individual, ostensibly to seek benefits for the gongyu company, but in fact to seek benefits for individuals above the personality assets of each company. Therefore, the investigation team of our committee carried out the investigation and evidence collection work of this case in accordance with the direction of the crime of personal bribery, and combined with the constituent elements of the crime, collected evidence on the circumstances of Feng Haijun's crime of bribery that did not meet the requirements of the unit. Thus constructing and strengthening the evidence chain of Feng Haijun's behavior belonging to the crime of bribery and not belonging to the crime of bribery by the unit from both positive and negative aspects, and laying a solid foundation of facts and evidence for the accurate characterization of the trial departments, procuratorial and judicial organs.
3 What policies did feng haijun focus on investigating and punishing?
Song Yang: The Nineteenth National Congress of the Communist Party of China clearly pointed out that it is necessary to adhere to no forbidden areas, full coverage, and zero tolerance, adhere to heavy containment, strong pressure, long deterrence, and insist on investigating bribery and bribery together. When feng haijun put forward its handling opinions, the case trial department, under the premise of trying the case in strict accordance with laws and disciplines and in accordance with the law, actively implemented the decision and deployment of the Central Discipline Inspection Commission and the State Supervision Commission on the joint investigation of bribery and bribery. This case occurred after the Second Plenary Session of the Nineteenth Central Discipline Inspection Commission, which is a typical case of multiple bribes and bribery to many people, and Feng Haijun's bribery behavior is even more defiant, and after the Eighteenth National Congress of the Communist Party of China, he did not restrain himself and did not accept it, and has taken bribery as a common means of seeking improper benefits. At the same time, Feng Haijun's bribery also caused huge economic losses to the state of more than 78 million yuan, seriously endangering the normal operation of state-owned enterprises such as Zhongliangshan Company. In the course of investigating and handling cases, our committee intensified the crackdown on the crime of bribery, cooperated closely with the judicial organs, formed a joint force of punishment through many consultations, punished the crime of bribery according to law, and took multiple measures to improve the accuracy and effectiveness of cracking down on the crime of bribery, and finally transferred Feng Haijun for examination and prosecution for the crime of bribery.
Not long ago, the State Supervision Commission of the Central Commission for Discipline Inspection, 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 Investigation of Accepting Bribes and Offering Bribes Together," which once again made arrangements for further promoting the investigation of bribery and bribery, and clearly pointed out that "bribery is the main source of bribery crimes, and bribery is not investigated, and bribery is not stopped, so it is necessary to persist in investigating bribery and bribery together." Among the five key investigations and punishments mentioned in the "Opinions", Feng Haijun's bribery behavior is in line with "repeated bribery, huge bribery, and bribery to many people, especially after the Eighteenth National Congress of the Communist Party of China." Under the guise of the coffee bean trade, Feng Haijun wantonly arbitraged huge amounts of state-owned funds for his own use, and his behavior has caused great damage to the business environment and the operation of state-owned enterprises, and if it is not seriously investigated, it will have a "negative incentive" effect and further breed the soil for the growth of bribery crimes.
The serious investigation and handling of Feng Haijun not only implements the basic principles of the Criminal Law, achieves the purpose of correctly applying the law and effectively cracking down on crime, and the fairness and justice value of the law and the good role of social value orientation are highlighted, but also implements the major policy decisions and arrangements of the party Central Committee to maintain the high-pressure situation of punishing corruption, promotes the realization of both the symptoms and the root causes of corruption, and ensures the organic integration and maximization of the political, disciplinary, and social effects of the investigation and handling of cases.
4 In practice, while the will of the individual and the will of the unit are highly mixed, how to correctly distinguish the crime of bribery and the crime of bribery of the unit? In judicial practice, what are the factors that affect the sentencing of the crime of bribery?
Zhou Guanchang: Judging from the provisions of China's criminal law, unit crime is the act of representing the will of the unit and seeking benefits for the unit, that is, the essential characteristics of the crime of bribery by the unit are concentrated in two aspects: First, the bribery behavior carried out by the perpetrator reflects the will of the unit; the second is to seek benefits for the unit through bribery.
From the perspective of criminal will, Feng Haijun's behavior is the embodiment of his personal will. For example, if Feng Haijun paid bribes to Hu and Li and colluded with them to take state-owned assets in a fraudulent manner, these decisions not only violated the principle of good faith that should be followed in civil activities, but were serious breaches of contract, and more seriously, they violated the provisions of Articles 3, 20, and 21 of the Company Law that could not harm the interests of the company, and what was reflected more was Feng Haijun's personal will than the will of the company. Secondly, the purpose of Feng Haijun's crime is contrary to the interests of Gonglingu Company, and as the general manager and actual controller of Gongling Company, he should perform his duties in accordance with the company's articles of association and the authorization of the company to seek benefits for Gongyu Company, but the purpose of Feng Haijun's bribery is not mainly for the coffee industry of Gongyu Company or the coffee bean trading business between Gongling Company and Zhongliangshan Company, but to alleviate the plight of its capital shortage with the help of state-owned enterprise funds and solve the financial difficulties of related companies that are related to him personally. From the perspective of the attribution of interests, the improper benefits obtained from bribery in this case mainly belong to Feng Haijun personally. The evidence in the whole case shows that the use of most of the payment has nothing to do with the cooperation between the two sides, and after the Gongyu Company received the payment for the goods, it used most of the funds for other enterprises and personal accounts under its control through Feng Haijun's personal control, which had nothing to do with the coffee bean trading business cooperated by Gongyu Company and Zhongliangshan Company. At the same time, although a small amount of the funds were used by the Gongyu Company to purchase coffee beans, this was a means taken by Feng Haijun to deal with the inspection of the Zhongliangshan Company, in order to cover up the truth that it did not use the money for the coffee bean trade. According to Article 393 of China's Criminal Law, even if the form meets the criminal charges of bribery by a unit, if the illegal gains are in essence owned by an individual, they shall still be punished as the crime of bribery.
Chu Haotian: In this case, the key to distinguishing between Feng Haijun's suspected bribery and the crime of bribery by a unit is to examine whether the perpetrator abused his control and sought personal benefits by paying bribes. Based on the specific facts and circumstances of this case, the courts of first and second instance both found that Feng Haijun's main reasons for constituting the crime of bribery were as follows:
First, Feng Haijun's bribery behavior is more reflective of his personal will. Second, most of the benefits from bribery are at the disposal of Feng Haijun personally. The attribution of illegal gains is the essential point that distinguishes between crimes committed by natural persons and crimes committed by units, and where illegal gains obtained as a result of bribery belong to individuals, they shall be convicted and punished in accordance with the provisions of the crime of bribery. As the actual controller of Gongyu Company, Feng Haijun's personal interests coincide with the company's interests, but he cannot confuse personal interests with the overall interests of the company on this basis. According to the provisions of the Company Law, the profits obtained by a limited liability company must first comply with the statutory procedures before dividends can be distributed. After the company received the coffee bean payment from Zhongliangshan Company, under Feng Haijun's arrangement, only part of it was used for the coffee bean business, and the other tens of millions of yuan were transferred to Feng Haijun's personal account and a number of other companies actually controlled. Feng Haijun disregarded the independent legal personality and property rights of the limited liability company and regarded the assets of the Gongyu Company as personal assets for free use, which is the specific manifestation of "the illegal income obtained through bribery shall belong to the individual", and should be convicted and punished in accordance with the provisions of the Criminal Law on the crime of bribery.
When deciding on the punishment of a bribery offender, a judgment shall be made in accordance with law on the basis of the facts of the crime, the nature and circumstances of the crime, and the degree of harm to society. In addition to the sentencing grade provided for in the law itself, circumstances such as voluntary surrender, confession, meritorious service, repeat offenders, previous convictions, and the briber's initiative to confess the bribery before being prosecuted can all have an impact on the sentencing of the crime of bribery. As far as this case is concerned, the court of second instance fully considered feng Haijun's active fundraising during the second-instance trial, fully refunded the occupied state-owned company's goods, and recovered the major losses of state-owned assets, thus changing the sentence in accordance with the law.