[Key words] criminal / abuse of power / bribery / surrender / lighter punishment / mitigated punishment
[introduction of the lawyer in this case]
Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, is a national excellent lawyer. He is currently the president of the Liaoning Provincial Lawyers Association, the president of the Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of the Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of the Liaoning Provincial People's Congress.
Lawyer Yang Xingquan's main business areas are domestic arbitration and litigation business and criminal business, and he has provided high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
[key points of judgment] after receiving the telephone notice from the case handling authority, the defendant arrives at the designated place at the appointed time, truthfully confesses some of the criminal facts that the case handling authority has not mastered, and is deemed to surrender, and all the stolen money is recovered. According to the law, the punishment may be lighter or mitigated.
[basic case] the defendant Chen was criminally detained by the Shenyang Municipal People's Procuratorate on June 13, 2017, and was arrested with the approval of the Liaoning Provincial People's Procuratorate on June 29, 2017.
The people's Procuratorate of Hunnan District of Shenyang City accused the defendant Chen of abusing his power while serving as the director of a demolition office, causing heavy losses to national interests, and the circumstances were particularly serious; Taking advantage of his position to illegally accept other people's property.
[judgment result] 1. The defendant Chen committed the crime of abuse of power and was sentenced to one year's imprisonment; For the crime of accepting bribes, he shall be sentenced to fixed-term imprisonment of two years and six months, and shall also be fined 200000 yuan. For several crimes, he shall be sentenced to fixed-term imprisonment of two years and ten months, and shall also be fined 200000 yuan (paid);
2. The defendant Chen's illegal income of 850000 yuan was recovered according to law and turned over to the State Treasury (paid).
[reason for adjudication] the defendant Chen, as a state functionary, abused his power, causing heavy losses to national interests. The circumstances are particularly serious, and his behavior has constituted the crime of abuse of power; Taking advantage of his position to illegally accept other people's property and seek benefits for others, the amount is huge, and his behavior has constituted the crime of accepting bribes and should be punished according to law. After receiving the telephone notice from the case handling authority, Chen arrived at the designated place at the agreed time, and should be deemed to have voluntarily surrendered, and the crime of abuse of power should be deemed to have surrendered; After arriving at the case, he truthfully confessed the crime fact of accepting a bribe of 850000 yuan, which was not mastered by the case handling authority. He was considered to have surrendered and all the stolen money had been recovered. Therefore, he could be given a lighter or mitigated punishment according to law. According to the circumstances of the case, he could be given a mitigated punishment according to law.
[relevant law] Article 385 of the criminal law of the people's Republic of China [crime of accepting bribes] a state functionary who takes advantage of his position to ask for property from others, or illegally accepts property from others to seek benefits for others, is a crime of accepting bribes.
Any state functionary who, in violation of state regulations, accepts kickbacks and service charges in various names in economic exchanges and belongs to himself shall be punished as accepting bribes.
Article 397 any functionary of a state organ who abuses his power or neglects his duty, thereby causing heavy losses to public property and the interests of the state and the people, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Where there are other provisions in this law, those provisions shall prevail.
Article 67 a person who voluntarily surrenders to the police after committing a crime and truthfully confesses his crime is a person who voluntarily surrenders. A criminal who voluntarily surrenders may be given a lighter or mitigated punishment. Among them, those who commit relatively minor crimes may be exempted from punishment.
If a suspect, defendant or criminal serving a sentence who has been subjected to compulsory measures truthfully confesses his other crimes that the judicial organ has not yet mastered, he shall be regarded as having surrendered.
If a suspect does not have the circumstances of voluntary surrender as prescribed in the preceding two paragraphs, but truthfully confesses his crime, he may be given a lighter punishment; If he truthfully confesses his crime and avoids especially serious consequences, he may be given a mitigated punishment.
Article 3 of the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of laws in handling criminal cases of corruption and Bribery: if the amount of corruption or bribery is more than 3 million yuan, it shall be recognized as "the amount is especially huge" as stipulated in paragraph 1 of article 383 of the criminal law, and shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death penalty, and shall also be fined or confiscated of property.
If the amount of embezzlement is more than 1.5 million yuan but less than 3 million yuan, and one of the circumstances specified in paragraph 2 of Article 1 of this interpretation is involved, it shall be recognized as "other especially serious circumstances" specified in paragraph 1 of article 383 of the criminal law, and shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated of property.
If the amount of bribes accepted is more than 1.5 million yuan but less than 3 million yuan, and one of the circumstances specified in paragraph 3 of Article 1 of this interpretation is involved, it shall be recognized as "other especially serious circumstances" specified in paragraph 1 of article 383 of the criminal law, and shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death penalty, and shall also be fined or confiscated of property.
Article 19: whoever is sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of corruption or bribery shall also be fined not less than 100000 yuan but not more than 500000 yuan; If a person is sentenced to fixed-term imprisonment of not less than three years but not more than ten years, he shall also be fined not less than 200000 yuan but not more than twice the amount of the crime, or his property shall be confiscated; If a person is sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, he shall also be fined not less than 500000 yuan but not more than twice the amount of the crime, or his property shall be confiscated.
For other crimes of corruption and bribery that are subject to a fine under the criminal law, a fine of not less than 100000 yuan but not more than twice the amount of the crime shall be imposed.
[lawyer's opinion] i. Chen's abuse of power is not his personal decision, but is implemented after being instructed by the superior leadership and collective research by the team
In the process of housing demolition and compensation, Chen was illegally performing his duties under the instruction and instruction of the superior leadership. As the executor of the leadership decision, Chen should only bear secondary responsibilities; Moreover, the compensation for house demolition is determined after collective study and discussion, and Chen should not bear full responsibility for the collective decision. The facts of abuse of power alleged by the public prosecution organ were reported by Chen in advance, discussed by the group in the process, and confirmed and reviewed by relevant leaders afterwards. They are typical crimes of dereliction of duty committed in the form of "collective research". Chen should only bear responsibility within the scope of his authority.
2、 There are omissions in the review and appraisal report of expropriation projects accepted by the public prosecution authority, which cannot directly and objectively reflect the actual losses caused by Chen's abuse of power
The information and materials on which the review and appraisal report on Expropriation projects is based are not objective and comprehensive. This report is based on the original real estate appraisal report, subtracting the actual area of the real estate on the land to calculate the national loss. However, according to the provisions of Article 17 of the regulations on housing expropriation and compensation on state owned land promulgated by the State Council in January 2011, the expropriated shall be compensated for the losses caused by the relocation, temporary resettlement and production and business suspension of the expropriated due to the expropriation of houses. As for the amount of loss caused by relocation, temporary resettlement and production and business stoppage to the relocated people by the demolition work, the report fails to reflect or check the coefficient, and cannot objectively reflect the actual loss caused by Chen to the country. The national loss recognized by the public prosecution organ is obviously higher than the actual loss.
3、 It is suggested that the court should pay full attention to the special period and specific environment where Chen's subjective maliciousness and abuse of power occur. In combination with the regional advantages of the demolished area and the average price of commercial houses at that time, the court should comprehensively consider the problems of "nail households" and adverse social impacts in the process of demolition compensation in other areas. The starting point of Chen's behavior is to complete the government plan, properly complete the demolition work, and maintain social stability, Its behavior occurs under the background of social contradictions induced by land requisition and demolition.
4、 Mr. Chen has such legally lenient and mitigated circumstances as voluntary surrender, voluntary confession, voluntary return of stolen goods, and voluntary payment of fines.
The highlight of this case is that the Court adopted most of the defense opinions of the defenders, and identified all the legal and discretionary circumstances of lighter and mitigated punishment of Mr. Chen, which fully reflected the principle of adapting crime to punishment and paying equal attention to punishment and education. Chen sincerely repented and pleaded guilty to the verdict, which made the case achieve a good unity of social effect and legal effect.