Bribery case of Huang

Release Time:：2020-12-25    Source：    Author：LV Yong [Key words] criminal / bribery / exemption from criminal punishment
[introduction of the lawyer in this case]
LV Yong, senior partner of Liaoning Tongfang law firm. Since practicing, he has served as the legal adviser of many enterprises and institutions and universities. Acting for a large number of litigation and non litigation legal affairs involving banks, real estate, companies, investment, insurance, contracts, etc.
[referee points]
1. State functionaries who take advantage of their positions to illegally accept other people's property and seek benefits for others constitute the crime of accepting bribes.
2. If the defendant can voluntarily surrender to the court after committing a crime, truthfully confesses the facts of the crime, has the circumstances of voluntary surrender, can sincerely repent after arriving at the case, and can actively turn over all the stolen money and goods, the defendant can be deemed to have committed a minor crime.
[basic case]
The people's Procuratorate of a certain district initiated a public prosecution and a criminal prosecution against a certain district procuratorate（ ×）× The No. indictment accused the defendant Huang Mou of taking bribes, and × year × month × Filed a public prosecution in this court. The court applied ordinary procedures according to law, formed a collegial panel and held a public hearing. Procurator of the people's Procuratorate of XX District ×× He appeared in court to support the public prosecution. The defendant, Mr. Huang, and his defenders came to the court to participate in the proceedings. The trial has now been concluded.
Accusation by the public prosecution authority:
× year × Month to × year × During the month of, the defendant, Mr. Huang, held a position in a certain unit and was responsible for the work of a certain aspect. During this period, he took advantage of his position to accept the RMB given by Party Zhang × Yuan; RMB given by Li a, manager of XX company of XX party × Yuan; Decoration given by Li Yiyi, the person in charge of XXX Co., Ltd × Pieces, worth RMB ×× Yuan.
two hundred and one × year × month × On the same day, the defendant, Mr. Huang, surrendered to the anti-corruption and bribery Bureau of the procuratorate.
In response to the above allegations, the public prosecution authority provided the following evidence to the court: the source of the case, the materials of voluntary surrender, personnel files ×××× Contract ××× Books and other documentary evidence; Testimony of witnesses Zhang, Li and Li; The confession and defense of the defendant Huang.
The public prosecution authority held that the defendant Huang, as a state functionary, took advantage of his position to illegally accept other people's property and seek benefits for others. His behavior violated the provisions of Article 385 of the criminal law of the people's Republic of China. The criminal facts were clear, the evidence was reliable and sufficient, and his criminal responsibility should be investigated for the crime of accepting bribes. According to Article 67 of the criminal law of the people's Republic of China, the defendant Huang can give himself up and be given a lighter punishment.
The defendant, Mr. Huang, has no objection to the facts and charges of the crime of accepting bribes charged by the public prosecution authority, but argues that the accused in the indictment accepted RMB × Yuan and ×× The decoration has exceeded the time limit for prosecution, and the court is requested to consider it.
The defender defended that the defendant Huang was a first-time criminal, and he did not ask for bribes, and his subjective malice was small; After committing a crime, he took the initiative to the case handling organ to truthfully explain the facts of the crime, with the circumstances of voluntary surrender; After arriving at the case, he has a good attitude of confession, shows repentance, and can actively turn over the stolen money and goods. To sum up, the defendant's criminal act was obviously minor, did not cause any loss to the state, and had the circumstances of voluntary surrender. It is hoped that he will be exempted from criminal punishment.
After trial, it is found that:
× year × Month to × year × During the period of months, the defendant Huang, as a certain position in a certain unit, took advantage of his position in charge of the coordination of work in a certain area to accept property from others three times. The specific criminal facts are as follows:
× year × In May, XX Co., Ltd. contracted to build XX project, and the defendant Huang provided convenience for it in the aspects of project progress review. Same year × In May, Li, a staff member of the company, gave the defendant Huang a decoration × Pieces (value: RMB × Yuan).
× year × In May, XXX Co., Ltd. contracted XXX project of XXX unit. The defendant Huang took advantage of his position to coordinate with a certain unit to change the construction drawings so that a certain manufacturer could supply goods to a certain limited company. Same year × In May, Li jiaa, the manager of a certain manufacturer, gave RMB to the defendant Huang × Yuan.
× In, Zhang was affiliated with a company to undertake a certain project. During the construction of the project, the defendant Mr. Huang helped with the allocation of project funds, the review of project progress and the settlement of project funds. × year × In June, Zhang gave the defendant Huang RMB to express his gratitude × Yuan.
× year × month × On June, the defendant, Mr. Huang, went to the anti corruption and bribery Bureau of the people's Procuratorate of a certain district to submit to the court and took the RMB he received × Yuan and so and so furnishings. Cash and stolen money (RMB) × Yuan has been detained by the people's Procuratorate of a certain district according to law.
The above-mentioned facts shall be proved by the following evidences provided by the public prosecution organ and proved and cross examined by the court, and the court shall confirm them:
1. The source of the case, the surrender materials, the source of the case and the fact that Mr. Huang × year × month × The fact that the Japanese surrendered.
2. Huang's personnel files and other materials confirm the fact that Huang has the qualification of accepting bribes.
3. Documentary evidence such as the contract of XXX confirms the fact that during the period when Mr. Huang held a certain position in a certain unit and was responsible for the work of a certain aspect, a certain project was contracted by a certain company affiliated to Mr. Zhang, the supplier of a certain project was a certain factory with Mr. Li as the manager, and a certain project was contracted by a certain company in Shenzhen where Mr. Li was located.
4. Witness: Zhang × year × month × The testimony of the day, the testimony of Li a and Li B confirmed the fact that he bribed Huang.
5. The testimony of witness Liu confirmed the fact that the project was contracted by a company affiliated to Zhang.
6. The confession and defense of the defendant Huang confirmed that he accepted bribes from Zhang, Li and Li.
[judgment result]
1、 The defendant, Mr. Huang, committed the crime of accepting bribes and was exempted from criminal punishment.
2、 Seized stolen money (RMB) × Yuan, which shall be confiscated by the detaining unit and turned over to the State Treasury according to law; Illegal income transferred with the case × Were confiscated according to law and turned over to the state treasury.
[reasons for adjudication]
1. The defendant Huang, as a state functionary, took advantage of his position to illegally accept other people's property and seek benefits for others. His behavior has constituted the crime of accepting bribes. The facts and charges charged by the public prosecution organ are supported by the court.
2. As for the defendant's argument that the two bribes given by Li B and Li a have exceeded the prosecution period, since the criminal act of accepting bribes is in a continuous state, the prosecution period shall be calculated from the end of the criminal act according to the law, so his argument is not accepted.
3. After committing a crime, the defendant Huang was able to voluntarily surrender to the court, truthfully confessed the facts of the crime, had the plot of voluntary surrender, was able to sincerely repent after arriving at the case, and was able to actively turn over all the stolen money and goods. Therefore, it was determined that the crime of the defendant Huang was minor.
[relevant provisions]
Criminal law of the people's Republic of China
Article 385 Any State functionary who, taking advantage of his position, extorts money or property from another person, or illegally accepts money or property from another person to seek benefits for another person shall be guilty 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 386 Whoever commits the crime of accepting bribes shall be punished in accordance with the provisions of article 383 of this law according to the amount of bribes received and the circumstances. Whoever extorts bribes shall be given a heavier punishment.
Article 383 Whoever commits the crime of corruption shall be punished according to the following provisions according to the seriousness of the case:
（1） Whoever embezzles a relatively large amount of money or has other relatively serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined.
（2） If the amount of embezzlement is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined or confiscated of property.
（3） If the amount of embezzlement is especially huge or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated of property; If the amount involved is especially huge and the interests of the state and the people suffer especially heavy losses, he shall be sentenced to life imprisonment or death and shall also be sentenced to confiscation of property.
Those who have repeatedly embezzled but have not been dealt with shall be punished according to the accumulated amount of embezzlement.
If a person who commits the crime mentioned in the first paragraph truthfully confesses his crime, sincerely repents, and actively returns the stolen goods before instituting a public prosecution, so as to avoid or reduce the occurrence of damage, he may be given a lighter, mitigated or exempted punishment under the circumstances specified in the first paragraph; Under the circumstances specified in Item 2 and item 3, a lighter punishment may be given.
If a person commits the crime mentioned in the first paragraph and is sentenced to death penalty with a suspension of execution under the circumstances specified in the third paragraph, the people's court may, according to the circumstances of the crime and other circumstances, decide at the same time that after the two-year suspension of execution of the death penalty expires, he shall be sentenced to life imprisonment without commutation or parole.
Article 67 a person who voluntarily surrenders to the police after committing a crime and truthfully confesses his crime shall be a voluntary surrender. 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 37 Where the circumstances of a crime are minor and it is not necessary to impose criminal punishment, criminal punishment may be exempted. However, according to the different circumstances of the case, the offender may be admonished or ordered to make a statement of repentance, make an apology, or compensate for the losses, or the competent department may impose administrative punishment or administrative sanctions.
Article 64 all property illegally obtained by a criminal shall be recovered or ordered to return or compensate; The lawful property of the victim shall be returned in a timely manner; Contraband and personal belongings used for committing crimes shall be confiscated. All confiscated property and fines shall be turned over to the state treasury and shall not be misappropriated or disposed of by themselves.
[lawyer's opinion]
1. As staff members of state organs, they should be diligent and conscientious, honest and self disciplined, and should not take advantage of their positions to accept bribes and gifts from others. In this case, the defendant took advantage of his position to illegally accept other people's property and seek benefits for others, which violated the legal interests protected by the criminal law, that is, the incommensurability of state functionaries' job-related behaviors.
2. The suspect and the defendant shall enjoy the litigation rights such as defense according to law. Even when the suspect and the defendant are prosecuted by the state organs, they also enjoy the rights conferred by the law, and the rights of the suspect and the defendant should be protected. According to Article 14 of the criminal procedure law of the people's Republic of China, "the people's courts, the people's procuratorates and the public security organs shall protect the defense rights and other litigation rights enjoyed by suspect, defendants and other litigation participants according to law."
3. Both the suspect and the defendant shall take the initiative to stop or mitigate the consequences of the crime before and when the criminal act is committed. After the suspect or defendant has committed a criminal act, he shall sincerely repent. And by taking the initiative to surrender, take the initiative to mitigate the consequences of the crime, take the initiative to hand in the stolen money and goods, and obtain the understanding of the victims, to reduce their own punishment. In this case, the reason why the defendant of this case obtained the judgment result of the court's exemption from criminal punishment is that the defendant can actively reflect and recognize the consequences and adverse effects of the criminal act after the criminal act. At the same time, the defendant in this case can voluntarily surrender to the court after committing a crime, truthfully confess the facts of the crime, have the circumstances of voluntary surrender, sincerely repent after arriving at the case, and actively turn over all the stolen money and goods. Therefore, the behavior after the crime was recognized as a minor crime by the court according to law, and the criminal punishment was finally exempted.