"And for the court cases involving economic crimes" forum of understanding
           [date: 2007-09-14] source: "criminal justice reference" 2004 fourth sets a total of thirty-ninth setsAuthors: Guo Qingguo [font: big]

      
      
          
     Corruption and crime of malfeasance big and important cases, social impact, the process of professional and stronger policy, trial work has certain particularity, all levels of court in judicial practice is also constantly face new situations and new problems, urgent need to strengthen the judicial service guide. Came 6 days on June 4, 2002, the Supreme People's court in Chongqing city held a senior military court of criminal judge people's courts at all levels and the people's Liberation Army participated in the work of economic crime case on trial, participants closely with criminal law and judicial practice, the scope is of decisive significance to identify "national staff" "state organs, State-Owned Company, enterprises and institutions, people's organizations", "public", "appointment", "commissioned by the", "an individual who embezzles", "using the convenience of duty", "seek interests for others" as the meaning of the terms of criminal law, and crime of corruption, bribery, embezzlement crime into be forgetful of one's duties corruption, criminal prosecution limitation of difficult issues of law application conducted extensive, in-depth research, and reached consensus on many aspects. After the meeting, the criminal law experts, scholars of the Supreme People's court organization law schools were further proof, and asked the Supreme People's Procuratorate and the National People's Congress Party Standing Committee, views, and eventually formed a "national courts of economic crime case seminar" (hereinafter referred to as the "summary"), in November 13, 2003 to "[2003]167" in the form of documents issued each higher people's court, PLA military court and the high court of Xinjiang production and Construction Corps Branch, for the people's courts at all levels to carry out in the case of embezzlement and bribery and the crime of malfeasance in the process.
     That problem, national staff
     On the national staff, the criminal law ninety-third stipulation: "state personnel" in this law, refers to the personnel of state organs. State-Owned Company, enterprises, institutions, people's organizations and state organs, public State-Owned Company, enterprise, unit to a non State-Owned Company, enterprises, institutions, social organizations engaged in public service, and other personnel engaged in public service according to law, to state functionaries." According to the provisions of the national staff, whether to belong to the meaning of the criminal law shall also have the following two features: one is engaged in public affairs; two is a certain identity or eligibility. Includes three types: engaged in public affairs in state-owned units, or by the state-owned units assigned to engage in public service, or in accordance with the law to engage in public service.
     (a) about to engage in public service
     According to the provisions of article ninety-third of the criminal law, "public" is a common characteristic of state functionaries, but because the criminal law does not explicitly "in public" meaning, the theory has not formed a unified understanding, how to identify the national staff, has always been a difficult problem in judicial practice. Due to the wide range of business content, scope, such as national institutions engaged in public affairs usually supervision, management, management of national assets. At the same time, along with the economic development and science and technology in the production, life, the official also manifested in the form is varied, it is very difficult to separate and services, "summary" have no concept of public service to make clearly defined, only clear "in public, is refers to the state organs, State-Owned Company, table enterprises, institutions, people's organizations and other performing organization, leadership, management, supervisory duties," stressed "the official is mainly associated with the functions and powers of the public affairs and supervision, management of state-owned property duty activities", and "that some do not have the authority of the services, technical services, such as the salesman the cashier, conductor, such as work", be excluded from official.
     (two) a national unit personnel engaged in official business
     According to the provisions of article ninety-third of the criminal law, engaged in public affairs in state-owned units in the personnel shall include the national office working personnel engaged in public service and State-Owned Company, enterprises, institutions, people's organizations staff. In view of "Supreme People's Court on the state-owned capital holdings, shares of the Limited by Share Ltd engaged in the management of the personnel of the company by taking advantage of the illegal possession of property to the conviction of approval" clear "in the state-owned capital holdings, shares of the Limited by Share Ltd in the management of the personnel, except by state organs, enterprises, institutions assign in State-Owned Company public service, does not belong to the national staff". "Provisional Regulations on the management of the registration of institutions" second paragraph first: "institutions, is the state for social welfare purposes, organized by the national authorities or other organizations to use state-owned assets held, engaged in education, science, culture, health and other activities of the social service organizations." "Summary" made no further provisions on the scope of the personnel engaged in official business in the State-Owned Company, enterprises, institutions, people's organizations, identified problems but a clear focus on the staff of state organs.
     According to the provisions of chapter third, all levels of state organs, administrative organs, judicial organs and the military authorities are national institutions in China, engaged in public service in these countries agency personnel of course belongs to the staff in state organ in criminal law sense. Therefore, "summary" first clear: "state personnel referred to in criminal law, which are engaged in public service in the organs of state power at all levels of personnel, including
     Personnel engaged in official business organs, administrative organs, judicial organs and the military authorities." In judicial practice, the state agency staff the personnel of state organs should not be equated with the meaning of the constitution, especially in recent years the organization reform, there are some state institutions not part of the meaning of the constitution or national institutions in the informal in person actually fulfilled part of national regulatory authority, such as national institutions China Banking Regulatory Commission is not the meaning of the constitution, but according to the Standing Committee of the National People's Congress on April 26, 2003 "China Banking Regulatory Commission to perform regulatory functions that the people's Bank of China perform decision", China Banking Regulatory Commission performing the duty of supervision of banks and other non bank financial institutions. Moreover, the people's courts at all levels of the system of appointment clerk, in fact has fulfilled its judicial power in some countries, etc.. For these are not included in the state organs in the form of preparation, the actual exercise of power of the state organs or staff working in state organs of the people, can be recognized as the staff in state organ in criminal law, as well as in the identified as the national office working personnel, the scope and how to master, is a difficult problem in judicial practice.
     "Summary" according to the December 28, 2002 National People's Congress party "on the" PRC Criminal Law "the ninth chapter subject of crime of malfeasance is explained:" clear "personnel of the exercise of state administrative authority in accordance with the provisions of laws, rules and regulations on the organization, or engaged in public affairs in state organs exercise their functions and powers on behalf of the national organization in the personnel, as a state functionary." In practice, that this part of the staff of state organs
     We should grasp the following three points: one is whether the actor has to exercise administrative functions and powers. Of note, the exercise of state administrative authority in accordance with the laws, regulations of the organization or by the state organs to exercise their functions and powers on behalf of the state organization itself is not a state organ, in these organizations staff is not of course the national office working personnel, only on behalf of the state exercise of management authority, and malfeasance, need to be investigated for malfeasance the crime behavior of human, the terms about the staff of state organs to criminal law. Two is provided for the exercise of state administrative authority if there are laws, regulations, or state agency authorization, entrust. Three is the nature of the action of person organization does not affect the determination of the staff of state organs, can not see the identity, cannot see him Is it right? Have said in the past the cadre, also cannot see where the unit is the administrative establishment, organization, or business unit, namely, can not see the person, also cannot see unit identity.
     In addition, taking into account the Chinese Communist Party of China's ruling party, multi-party cooperation and political consultation system under the leadership of the Communist Party of China is a fundamental political system in China, and will exist and develop for a long time. In China's political life, social life and foreign friendly activities, in the construction of socialist modernization, maintain the unity and unity of the country in the fight, the Communist Party and the Chinese people's Political Consultative Conference China actually performing the state management functions, but not all the party organizations and political organs perform administrative functions, "summary" also clearly in the township (town): "the Communist Party, the Chinese people's Political Consultative Conference Chinese institutions engaged in public affairs, in judicial practice, it shall be deemed that the personnel of state organs." Here the "township (town), Chinese above" refers to the Central Committee of the Communist Party and the CPPCC National Committee, province, autonomous region, or municipality directly under the central government, city, county (District), township (town) Party committees and people's Political Consultative Conference, not including the grass-roots party branches, not including the company organizations, enterprises and other units in the.
     (three) on the appointed public employees
     According to the provisions of article ninety-third of the criminal law, state agencies, State-Owned Company, enterprise, unit to a non State-Owned Company, enterprises, institutions, social organizations engaged in public service, the state functionaries. "Summary" a clear focus on two aspects: one is to form, two is engaged in the appointment after work.
     In practice, appointed public employees is mainly refers to the state-owned holding or equity Limited (liability) Ltd., a Sino foreign joint ventures, responsible for the supervision of state-owned assets management responsibilities, Sino foreign cooperative enterprise in the personnel, usually for the chairman, vice chairman, general manager, director, supervisor, the person in charge of finance etc.. But generally not the persons directly by the state-owned units officially to the appointed according to the provisions of the company law, such as the way to produce, the general manager, deputy general manager and financial responsible person appointed by board of directors; chairman of Limited by Share Ltd, deputy director
     Long by the board of directors by a majority of directors elected, the general manager, deputy general manager and financial responsible person appointed by board of directors; Company Limited and the Limited by Share Ltd's directors and supervisors, shall be made by the shareholders (large) be elected. Chinese foreign equity joint venture law provisions, the chairman and vice chairman are determined by the parties to the joint venture through consultation or elected by the board of directors, the general manager, deputy general manager, chief accountant appointed by the board of directors. Sino foreign cooperative enterprise's board of directors or the joint management mechanism, in accordance with the provisions of the law on Sino foreign cooperative enterprises, should be produced in accordance with the provisions of the contract or the articles of association of the joint venture. Considering the "recommended" and "name" is usually a substantive behavior of state-owned units to exercise the right personnel, by state-owned units recommended or nominee once in non-state-owned units as the corresponding duties, which won the representative of the state-owned units, supervision and management of state-owned assets of the duties, not because of general meeting of shareholders or the board of directors shall be elected by appointment procedures and denied the nature of state-owned unit assigned. Therefore, "summary" clear: "the so-called appointment, is appointed, dispatch, the variety of forms, such as appointing, nomination, approval etc.. No matter how the person appointed identity, as long as it is to accept state organs, State-Owned Company, enterprise, unit, on behalf of the state organs, institutions, State-Owned Company to non State-Owned Company, enterprises, institutions, social organizations of the management authority, can be identified as the national authority, State-Owned Company, enterprise, unit to a non State-Owned Company, enterprises, institutions, social organizations engaged in public service." The determination of whether to belong to the appointed public employees, should be grasped from the following three aspects: one is to ask the source, regardless of whether the actor has the status of national staff in the appointed before, also regardless of the perpetrator is appointed or assigned unit is the original employees, or to appoint temporary from society on the recruitment of personnel (such as farmers), can become state-owned units assigned personnel. Two is assigned a variety of forms, which can be beforehand, nomination, appointment, assignment, recommended, also can be recognized, agree, after approval, but it should be noted that, the simple filing behavior does not belong to the appointed public employees. Three appointed by the representative of the state-owned units must be in the non state owned unit is engaged in the organization, leadership, supervision, management and other functions.
     "Special case" according to the summary of the State-Owned Company, enterprise restructuring of the clear: "the State-Owned Company, enterprise restructuring as a Limited by Share Ltd, State-Owned Company, enterprise work personnel and Limited by Share Ltd newly appointed staff representatives, in addition to state-owned investment entities, exercise supervision and management authority of people, not to the state functionaries." In this regard, we should grasp the following two: one is a State-Owned Company, enterprise restructuring, not because the behavior of people engaged in official business in the restructuring of the former State-Owned Company, enterprise, and identified as a national staff; two is a State-Owned Company, enterprise restructuring, in the Limited by Share Ltd of state-owned investment entities represent the exercise of supervision, administration personnel, shall be determined as appointed public employees.
     (four) on the other personnel engaged in official business according to law
     "Other personnel engaged in public service according to law", which does not belong to the state-owned unit staff, nor by the state-owned units assigned to engage in public service, but the exercise of the administrative functions, such as in the people's Congress is holding a representative certificate on the spot inspection, and to the relevant state organs responsible person or subordinate suggestions, comments and opinions of the deputies in the court to entertain peasants; the people's jury duty; "to assist the people's government or its agency to do a good job of public health, family planning, special care is associated with the interests of the inhabitants of relief, education of the youth work" the city members of the residents committee, virtue. According to the provisions of article ninety-third of the criminal law, this kind of personnel to carry out the crime behavior and related responsibilities in the exercise of state management authority, shall apply
     The provisions of the criminal law on the national staff. "Summary" clear "two characteristics of other personnel engaged in official business in accordance with the law": one is to make the country management function in specific conditions. The two is to exercise administrative functions to have a legal basis, which is in accordance with the law to engage in public service. It should be noted that, "other personnel engaged in public service according to law" is a kind of general provisions, which is fixed, EMU with the reform of China's political, economic system changing development
     . At present, "other legal public functionaries" think mainly has the following four kinds: one is the people's congresses in performing their duties on behalf of corruption; the two is to perform their duties in accordance with law of the people's Political Consultative Conference committees at all levels; three is the corruption to the judicial
     The duties of the people's juror; four is to assist the people's Government of a township, subdistrict offices in the administration of the villagers' committees, residents' committees and other rural and city grass-roots organizations.
     Two, corruption issues of application of law in criminal cases
     (a) definition of the accomplished offense and the attempted crime of corruption
     The crime of embezzlement is a direct intentional crime, there exist unaccomplished state, but for the problem of distinguishing the accomplished offense and the attempted crime of corruption, have a different understanding, there are mainly four kinds of Views: one is the behavior whether actually made public property as the distinction between corruption and accomplishment and attempted standard; two is the property owner or holder is out of control on public property as the distinction between corruption and accomplishment and attempted standard; three is whether the actor has control of the property as the distinction between corruption and accomplishment and attempted standard; four is the property owner or holder lost control of the property and the actual control of behavior, can be identified as corruption crime. In view of the actual control of the property and property behavior of owner or holder out of control, the perpetrator of the public property obtained the properties between the time difference, such as state personnel who take advantage of their office to take illegal means flat account, the money from the account to another account, the behavior of people have not had time to take out the money before, in this case, although the actor has not actually obtained the public property, but does not affect the cognizance of corruption crime; and the owner of the property or the holder lost control of his property is not equal to the behavior person has actually obtained or control of the property, such as the national staff knew there is a unit of account receivable the account, and the account of illegal means, deadly in units of financial accounts can not reflect the receivable, but not before the payment in payment, in this case, the unit has lost control of his property, the person has not made on the actual control of the receivable corruption, shall be determined as attempted. Therefore, "summary" clearly: "should be based on whether the actor has an effective control of the property to distinguish between corruption crime accomplishment and attempted standard".
     (two) on "by that entrusted management, operation of state-owned property"
     The criminal law in order to strengthen the protection of state-owned property in the 382nd section second special provisions: "by state organs, enterprises, institutions, State-Owned Company, and people's organizations entrusted with the management and operation of state-owned property, taking advantage of his position, embezzle, steal, cheat or by other means of illegal possession of state owned property, to corruption theory." It should be noted that, the entrusted management, management of state-owned property is not a national staff, nor to state functionaries, therefore, can become the subject of crime of corruption, bribery, misappropriation of public funds cannot be the subject of other state personnel duty crime. In form, either in the front or the trustee, trustee and Trustor don't exist administrative relation. For the working personnel engaged in public service in non state owned units, even if the contract workers, once in the state-owned unit interior undertakes management, manage state-owned property duty, shall be directly recognized as the personnel of state-owned units, rather than the entrusted management, management of state-owned property; if it is state-owned units assigned to non employment state owned unit management, management of state-owned property. In essence, the exercising of the management, the state-owned assets management responsibilities. Here the "management of state owned assets", is a kind of public affairs of the nature of the activities, not only the means of the state owned assets for safekeeping, often means that the trustee has certain powers of state owned property. The so-called management, is a guard or hold public property authority. Operators in the operating period usually also exercise of management authority, has the right of disposal of public property. The so-called management, is refers to the public property on the market and capital increase in value as a commercial activity, or the use of public money to engage in for-profit activities. Although the specific performance management, management of state-owned property is engaged in official business, as entrusted by the management and operation of state-owned property, does not belong to the unit staff, therefore, does not belong to the national staff. Therefore, "summary" to further clarify the "entrusted management, management of state-owned property, is the result of contracting, leasing, temporary employment management, management of state-owned property".
     (three) about the joint crime of corruption "an individual who embezzles" problem
     "An individual who embezzles" as the crime of corruption of the conviction and punishment standard, first appeared in 1988 in the National People's Congress Standing Committee "on the punishment of crimes of embezzlement and bribery Supplementary Provisions" (hereinafter referred to as the "Supplementary Provisions") in second, and was followed in 1997 by the criminal law. "Supplementary Provisions" second paragraph second: "two more common corruption, in accordance with the individual income amount and its role in a joint crime, respectively. The first group of corruption molecular, in accordance with the amount of punishment group corruption; on the other common principal in the crime of embezzlement, if the circumstances are serious, in accordance with the total amount of joint corruption punishment." That is to say, in the common crime of corruption, and to deal with corruption, only the total amount of the principal should bear the criminal responsibility, accessory bear criminal responsibility for individual income amount only. The criminal law of 1997 removed the "Supplementary Provisions" in the second paragraph second shall, in the provisions of part of the punishment principle of the principal, namely "ringleader who organizes, leads a criminal group, punishment according to all the crimes committed by the group. The principal otherwise stipulated in the third paragraph, shall participate in or organize, command of all criminal punishment ", no provisions on how to deal with the accessory. Therefore, in judicial practice, for the determination of an accessory "an individual who embezzles", in order to avoid the loss of some accessory penalty, still in accordance with the "Supplementary Provisions" established principles, to determine the criminal responsibility of individual income amount; others according to the total amount of personal involvement in corruption, determine the accessory criminal now. In order to apply the uniform criminal law, "criminal law" according to the summary of the joint crime behavior should be the common implementation of criminal responsibility and criminal law theory clearly: "article 383rd of the criminal law stipulated in the first paragraph of 'individual embezzles', in the common corruption crimes should be understood as individuals or organizations, command common corruption amount, not by individual share of corruption and money amount to." The joint corruption crime organization, the commander of the "individual who embezzles corruption" is the total amount of the organization, command together corruption, other principal and accessory "individual embezzles" according to its participation in the determination of amount. In view of the fact that an accessory in joint crime plays a secondary or auxiliary role, in order to avoid personal participation in determining the amount of criminal responsibility in sentencing significantly overweight, "summary": "to further clarify the accomplice in a joint crime of embezzlement, shall determine the sentencing range according to the common corruption its participation in the amount, and in accordance with the provisions of the second paragraph of the criminal law twenty-seventh, a lighter, mitigated punishment or be exempted from punishment."
     (four) the nature of the crime problem in the same unit Chinese home staff and non national staff collusion common illegal possession of property units behavior
     "The Supreme People's Court on corruption, embezzlement case how to identify several common crime question explanation" the third stipulation: "the company, enterprise or other unit, does not have the status of national staff person collaboration with national staff, respectively, by taking advantage of their own, to the unit's property as its own, according to the nature of prime criminal conviction." But in the judicial practice difficult to distinguish between master and slave offender, it should be how to define the crime, there are different understanding: a kind of opinion thinks, for national staff and non national staff should be based on the crime of corruption and embezzlement were convicted; another view, should be recognized as the principal of high positions, in the same position, will be identified and possession of property are more closely related to principal, in the same position, will be identified and possession of property are more closely related to the principal, then according to the nature of prime criminal conviction; and a kind of opinion thinks, should be unified the crime of corruption.
     Theoretically speaking, since it is hard to distinguish between the main, accessory, usually means the joint corruption crime in joint crime status, effect quite, cannot simply be post high or and possession of property closer links were identified as the principal, and convicted separately and may be due to the standard of conviction and sentencing different punishment unfair situation, also does not conform to the provisions of the third paragraph of article 382nd of the criminal law and the national personnel or the entrusted management, management of state-owned property personnel colludes with, together with the corrupt, to define the embezzlement accomplice. This situation actually belong to the criminal theory of the imaginative joinder of offenses, namely on the one hand, state personnel who take advantage of the convenience of duty of non national staff, the illegal possession of property units become embezzlement accomplice; on the other hand, the non national staff to use the convenience of duty of national staff, become the accomplice of corruption crime. Therefore, "summary" clear: "for the
     In the company, enterprise or other unit, non national staff and the national staff collusion, respectively, by taking advantage of their own, the common will of the property units of illegal possession, should try to distinguish between the main accessory, according to the nature of prime criminal conviction. If each in joint offence in the status, role, it is difficult to distinguish from crime, crime of corruption can be convicted and punished
     ." That is to say, should be in accordance with the law to apply the principle of "imaginative joinder of offenses alternative re".
     The applicable law of the crime of bribery, in three cases
     (a) about "using the convenience of duty"
     "Using the convenience of duty" is necessary for the constitutive elements of the crime of bribery, bribery crime reason is called duty crime. The provisions of the criminal law on the crime of bribery, "using the convenience of duty" is usually associated with "to seek benefits for others", the use of titles but human behavior the benefit of others is more complex, there is the direct use of my job, there is indirect use, such as the use of the third position, to seek benefits for others. Because the criminal law 383rd stipulation "through other national staff positions on the behavior of" seeking the interests for others constitute the crime of bribery, to be "to seek illegitimate interests for others" as a necessary condition for the use of the third, taking advantage of the judicial practice in the interests as the interests for others, illegal or ask for other people's property behavior the bribery crime, conviction and punishment, have different understanding. Considering the behavior of using third position to seek benefits for others in the situation, there is the Department, the system with its own membership, the relationship between the state personnel duty behavior, between the two has the membership, the management system of constraints, therefore, the use of a command, the command, the subordinate dare not from the nature, is a concrete manifestation of the national staff use convenient position, I seek benefits for others, "summary" clearly: "article 385th of the criminal law stipulated in the first paragraph 'advantage of his position to facilitate', including the use of my office director, responsible, hosted a public affairs authority by taking advantage of his position, including membership, the relationship between other national staff authority", and stressed that the division of labor, use my authority is not limited to the state personnel duty, "as national unit staff leadership positions through the national staff subordinate departments are not their supervisor's position to seek benefits for others, should be identified as' advantage of his position to seek benefits for others'"
     (two) about "seek interests for others"
     According to the provisions of the first paragraph of article 385th of the criminal law of first and 387th, national staff accept bribes, or state agencies, State-Owned Company, enterprise, institution, people's organizations claim, accept bribes, bribery, must have the "seek interests for others" condition. This benefit can be the legitimate interests, also can be the illegitimate interests; can be both material benefit, also can be the non-material interests. As for "the interests for others" is the time in illegally took other people's property at the same time or before or after the establishment of the crime of bribery, does not affect the. However, in judicial practice there is state staff taking bribes, and without the use of his position to seek benefits for trustees situation, this kind of behavior whether to constitute the crime of bribery, are controversial in theory and judicial practice. Considering the social harmfulness of bribery crime is mainly reflected in the integrity against the State functionaries, as long as it is to seek benefits in exchange for accepting property, regardless of the actual financial interests or seek interests are realized, shall not affect the establishment of the crime of bribery. Summary: "clear" criminal law "to seek benefits for others" should include the commitment, the implementation of the three stages of behavior. As long as having one of a phase behavior, has the condition for the benefit of others. Knowing that others have specific please receive their property, as a commitment to seek benefits for others. In other words, as long as the national staff knew others send property is to hope that their advantage of his position to seek benefits for others to accept the meaning of the criminal law, constitute bribery.
     (three) convenient conditions about "formed by the authority or position"
     The criminal law 388th stipulation about "formed by his power or position convenience", from "the Supreme People's court, the Supreme People's Procuratorate for supplementary provisions > < on execution of punishment of crimes of embezzlement and bribery answers to some questions". Article second the provisions of third to answer: "the crime of accepting bribes' using the convenience of duty ', refers to the use of authority or related with the power facilities. 'powers' refers to the authority within the personal duty. 'and' official duties', although not directly refers to the use of terms, but use my authority or the status of the convenient conditions formed. State personnel not directly use my authority, but the use of his own powers or position convenient conditions formed by other countries, working staff's act, for the benefit of trustees, and I to and from the trustees for or illegally accepting property, shall be punished for taking bribes. For simple use of family relationship, as trustees to service, from accepting property, should not be punished for taking bribes." The 1997 revision of the penal code, the "convenience" use my authority or position with "to seek illegitimate interests" as trustees to connect, as the mediate bribery of national staff, common conditions constitute the crime of bribery. The order in accordance with section first of criminal law 385th to distinguish, "summary" the mediation bribery crime of bribery two characteristics: one is with the use of the national staff to accept the request, ask for or accept property duty behavior to seek illegitimate interests as trustees national working without a membership, duty the personnel control the relationship between different departments, such as the unit of national staff between upper and lower levels, no membership units, constraints on the relationship between the national staff, working with different units between the national staff; two is the cable state functionaries take or accepting property has certain influence on the State functionaries of the this effect, but should be indirect, if can directly influence, should be in the first paragraph of criminal law 385th.
     (four) determination of joint crime of bribery
     According to the relevant provisions of the criminal law on the crime of bribery, bribery is a crime, can only be formed by state functionaries, non national staff alone does not constitute the crime of bribery, but according to the provisions of the criminal law on crime, non national staff can be used as the national staff bribery accomplice. That whether the non national staff bribery complicity, should depend on whether it meets the provisions of the criminal law on crime, namely "both sides have no common bribery intention and behavior". For conspiracy and working personnel of the state, by the state personnel who take advantage of their office for the benefit of trustees, non state functionary who extorts or illegally accepts property as trustees, and is possessed of both sides, non national staff of course constitute the accomplice of bribery.
     The joint crime of bribery between national staff and their close relatives of intentional usually difficult to verify, in judicial practice, how to identify the close relatives of national staff for the crime of bribery accomplice, more controversial, issues, "" clear summary of two cases following can maintain close relatives constitute the joint crime of Bribery: one is a national staff close relatives to the national staff to convey please, please accept the trustee of property and inform the working personnel of the state; two is the national staff knew of his close relatives of accepting others' property, still in accordance with the close relatives of the requirements of the authority to seek benefits for others. In the first case, close relatives is actually the joint crime of bribery, accessory, namely national staff bribery creates the necessary facilities, such as the transfer of information and national staff to discuss, communicate and accept bribes, accepting bribes, help national staff bribery bribery etc.. In the second case, close relatives is a common crime of bribery abettor, mainly in the induction, persuade, urged even coercion state personnel who take advantage of their office as trustees to seek interests, deliberately national staff bribery crime at the instigation of the close relatives of the next, and the implementation of bribery. As long as close relatives can prove that the national staff of the implementation of the corresponding help or abetting behavior, it can be recognized both have common bribery intention and behavior, constitute the joint crime of bribery. However, for near relatives knowingly sent Property Department of national staff to seek benefits for others the results and to accept, but without solicitation, or knowingly Department of national staff bribery income and share with them, to fail to report the facts, not to the accomplice of bribery criminal responsibility.
     (five) recognized on the national staff "borrowing" behavior
     In the trial of bribery crime, bribery is part of the existence of "borrowing" name, because the legitimacy of private borrowing, borrowing for legitimate national staff, of course not to bribery crime. But in some cases, state functionaries "borrowing" behavior is essentially "loan" in the name of the bribery. In practice, the working personnel of the state loan situation is more complex, some of it really is and borrowing because life need, not even written loan procedures; written procedures although some borrowing, but does not have any legitimate loan reasons; although in the right, under the reasonable borrowing, but after a return ability and condition, but no action and meaning to say. Because it is very difficult to just borrowing and delineation of bribery by "borrowing" the name of the unified standard, "summary" only in the clear "state personnel who take advantage of their office, ask for property to others in the name of borrowing, or illegally accept money for the benefit of others, should be identified as the premise of bribery", for the how to identify the bribery to "borrowing" as a concept, for the trial judge to grasp.
     (seven) identification problem relates to the stock of the bribery case
     The stock as marketable securities, become the object of the crime of accepting bribes, differences exist in practice. If people take stock, regardless of the value of the stock price, shall not affect the bribery crime. The difficulty lies in the judicial practice, because of the value of the stock changes over time, but the crime of bribery is to receive property amount as conviction basis, then take stock, how to calculate the amount of bribery. "Summary" according to the behavior of people in accepting shares whether to pay equity clear: (1) the state personnel who take advantage of their office, ask for or illegally accept stock, not pay equity, for the benefit of others, constitute the crime of bribery, bribery amount calculated in accordance with the actual price taking stock of. (2) the behavior people pay equity capital and the purchase of a possible appreciation of the stock, because it is not free from property as trustees, not punished for the crime of accepting bribes. (3) stock has been listed and appreciation, people only pay equity, price and the actual price of equity "buy" shares of bribes.
     Four, the legal issues of crime in the case
     (a) on the unit can constitute the crime of misappropriating public funds problem
     In judicial practice, people responsible for some State-Owned Company, enterprise, institution or people's organizations to the interests of unit, in violation of the provisions in the name of the units of public funds to personal use, for executives this behavior to the crime of misappropriating public funds is directly responsible to the unit and other persons directly responsible shall be investigated for criminal responsibility, there are different practice: some to embezzlement crime, some not to the crime. In order to apply the uniform criminal law, "summary" clear: "the unit leadership collective research decision for personal use, or the person in charge of the unit to unit's benefit, decided to public funds for personal use, not to misappropriate public funds crime." Therefore, in the name of the units of public funds for personal use of the lending behavior, the crime of misappropriating public funds should be convicted and punished, reviewing and determining the behavior whether to belong to the unit behavior. The unit behavior, namely the unit leadership decided to study the public funds for personal use, or the person in charge of the unit to unit's benefit, decided to public funds for personal use, because the criminal law has not stipulated the unit crime of misappropriating public funds, according to the principle of legality, neither in the crime of misappropriating public funds shall be investigated for criminal responsibility of unit, the criminal responsibility of supervisor researchers aren't in the crime of misappropriating public funds hold units directly responsible and other directly responsible personnel. The behavior if major losses in unit, composed of other crimes, conviction and in accordance with the relevant provisions of the criminal law.
     (two) of misappropriating public funds use whether to constitute the crime of misappropriating public funds to other units
     According to the provisions of article 384th of the criminal law, "embezzlement of public funds for personal use", is the need for funds constitute the elements of the crime, not including the use of embezzlement of public funds for the unit, but according to the April 28, 2002 Ninth National People's Congress for the twenty-seventh meeting of the Standing Committee on the "article 384th of the criminal law. The first explanation", for the following two cases should be identified as "belongs to the 'embezzlement of public funds for personal use'", which constitutes a crime, shall be convicted and punished for the crime of misappropriating public funds: one is "in the name of the public money for other units use". The so-called "personally", not only form, to grasp the essence. For the behavior of evading financial supervision, agreement or and use them in the name of an individual, or borrowing, repayment in the names of individuals, the public funds to other units in use, should be identified as "in the name of a person". Two is the "personal decisions in the name of the unit will use the money for other units, seek personal interests". Here the "personal decision", including the behavior of people in the scope of authority, including beyond the remit decision. "Personal interest", including the behavior and usage to agree beforehand to seek personal benefits actually has not yet acquired, including has not agreed in advance but actually has access to the personal interests of the. One of the "personal interest", including illegitimate interests, including the interests of the. Property interests, including non property interests, but the non property interests is refers to the concrete can be used in evidence of interest, such as education, employment etc..
     (three) determination of misappropriating public funds use
     According to the provisions of article 384th of the criminal law, use of misappropriating public funds crime is different, the conditions are different, the embezzlement of public funds for personal use, gambling, smuggling and other illegal activities, constitute the crime of misappropriation of public funds, not by the "large amount" and the time limit; will move with funds to raise funds, to buy shares, treasury bonds and other profit-making activities, constitute the crime of misappropriation of public funds, must have a "large amount" of this condition, but not by the time limit; the misappropriation of public funds for personal purposes, embezzlement of public funds, must also have "large amount" and "not more than three months also" two conditions. Therefore, that the use of public funds misappropriated directly relates to the crime with the non crime. "Summary" clear up some of the judicial practice in common, exist in the use of determination of different situations: one is the embezzlement of public funds to personal debt, should be based on the causes of debt, were found what belongs to the embezzlement of public funds. The return of individual illegal activities or profit-making activities in arrears, shall be deemed as illegal activities as embezzlement or profit-making activities. Two is the embezzlement of public funds for registered companies, enterprises, should be identified for profit-making activities for misappropriation of public funds. Three is the embezzlement of public funds have not been put into practical use, constitute the crime of misappropriation of public funds, should also have the "large amount" and "not more than three months also" two conditions. It should be noted that, in order to smuggling and other illegal activities or speculation, to do business in profit-making activities and misappropriation of public funds in the bank, although it has not been put into practical use and crime, does not belong to the unused defalcation, should according to "the highest for the provision of civil court on the embezzlement case concrete application case concrete application law interpretation of several issues" article second, identified for illegal activities or profit-making activities for the misappropriation of public funds.
     (four) of misappropriating public funds into the crime of corruption problem
     The criminal law of 1997 canceled the 1988 "the Standing Committee of the National People's Congress concerning the punishment of crimes of embezzlement and bribery of the Supplementary Provisions" on the "larger amount of misappropriation of public funds is not refundable, provisions on corruption theory", and clearly "misappropriation of public funds amount is huge, no refund", which belongs to the statutory aggravating condition, but the embezzlement behavior into corruption is an objective existence. Transformation is the symbol of the actor in the subjective returned by later, do not intend to permanent possession, into a permanent possession of the misappropriation of public funds, do not intend to return. "Summary" according to the objective behavior of people the embezzlement of public funds after the performance, clearly has the following circumstances, can maintain the behavior person has the purpose of illegal possession of public funds, the crime of corruption: one is convicted and punished embezzlement after taking account of the accounts, destroying the false flat means, make the misappropriation of public funds have been difficult in the financial unit the accounts reflected, and no return behavior; two is the interception unit not accounted for, and no return behavior; three is the evidence to prove that the actor has the ability to return the misappropriation of public funds and refuse to return, and hide misappropriation of public funds to. In addition, the "Supreme People's Court on Several Issues concerning the specific application of law in trial of misappropriating public funds," explained sixth has provisions ", carrying the misappropriation of public money", in accordance with the crime of corruption conviction punishment, "summary" made clear in this case to corruption conviction and punishment amount, the perpetrator with carry the public part.
     The applicable law of five, the crime of huge unidentified property
     The crime of huge unidentified property is criminal law special requirements for state workers, but also criminal law only a requirement for the defendant bear the burden of proof. When the public prosecutor confirmed that the property of the defendant or spending significantly more than the legitimate income, and the difference is huge, the defendant must bear the huge property legal sources of obligations, as long as can not explain the legitimate sources, form of property from unidentified sources. Here the "can not explain the legitimacy", including "behavior people refused to explain the source of property", "the source" behavior cannot explain property, and "behavior person said property from judicial verification is not true" etc.. At the same time, in view of the defendant in the judicial practice often fabricated reasons legal sources, or explain the huge wealth from corruption, embezzlement, bribery and other illegal income, and can not be confirmed, "summary" also clearly: "people said the property sources for line cable not specific and other reasons, the judiciary could not to them, but to exclude the presence of legitimate sources of possibility and rationality", which belongs to the "can't explain" legal sources.
     In addition, "summary" also made clear the "calculation method of the amount of the illegal income".
     The applicable law of six, the malfeasance in the
     (a) a great loss caused by the problem of Malfeasance
     According to the criminal law, cause public property, the interests of the state and the people suffered a major loss, is necessary to be forgetful of one's duties, breach of privilege and malfeasance crime conditions. Although extensive heavy losses, it is difficult to be unified, but caused great economic losses, shall be deemed to cause public property, the interests of the state and the people suffered a major loss, which is no doubt. Typically, determining whether cause economic loss is relatively easy, but for malfeasance behavior of the creditor's rights can not be achieved, whether recognized cause economic loss for malfeasance behavior, differences in judicial practice. "Summary" clearly: "in the judicial practice, any of the following circumstances, while the public property as a creditor, but has been unable to realize creditor's rights, that cause economic loss for malfeasance behavior: (1) the debtor has the legal procedure is declared bankrupt; (2) the debtor abscond, whereabouts unknown; (3) for criminal responsibility, resulting in more than the limitation of action; (4
     There are other evidence to prove the claims) can not be achieved."
     (two) the limitation about be forgetful of one's duties crime
     Article eighty-ninth of the criminal law provisions in the first paragraph: "the limitation period for prosecution shall be counted from the date of the crime; criminal act is of a continuous or continuing state, calculated from the date of the end of crime." Because of the longer between the perpetrators be forgetful of one's duties behavior eventually occur often and objective harm as a result of time interval, for the limitation of prosecution be forgetful of one's duties crime exists in calculation or serious consequences when the computation of dispute to the perpetrators be forgetful of one's duties behavior. Consider: (1) be forgetful of one's duties crime is consequential to the occurrence, the provisions of the criminal law -- "the necessary conditions of public property, the interests of the state and the people to suffer heavy losses" as a constitutive elements of a crime. Before the harm results occur, people found the mistakes in the work, timely corrective, take the necessary remedial measures, or other people take effective measures, prevent the occurrence of the harmful consequences, or no harmful consequences, do not constitute a crime. Be forgetful of one's duties behavior caused only the objective harm consequences actually occurs, the act became a crime, be forgetful of one's duties crime can be established. (2) be forgetful of one's duties crime is the crime of omission, in the objective performance for the personnel of state organs do not perform or improper performance of their duties, before the crime before the establishment of the harmful consequences, be forgetful of one's duties behavior the inaction of the doer has been in a continuous state. "Summary" clear: "the great loss caused by the behavior of be forgetful of one's duties didn't happen, but after some time be forgetful of one's duties behavior occurs, the period for prosecution shall be counted from the date the harm results occur be forgetful of one's duties crime." In other words, the calculation of prosecution be forgetful of one's duties crime effect from the date of the establishment of the crime be forgetful of one's duties.
     (three) the applicable law about State-Owned Company, enterprise personnel malfeasance crime
     According to the provisions of article 187th of the criminal law of 1979, State-Owned Company, enterprise personnel be forgetful of one's duties, cause public property, the interests of the state and the people to suffer heavy losses, shall be subject to criminal liability to be forgetful of one's duties. The 1997 criminal law will be forgetful of one's duties crime subject of crime is modified for the personnel of state organs, set at the same time, the performance of the contract being signed dereliction of duty crime and play favouritism and commit irregularities caused by loss of bankruptcy, crime, punishment due to staff State-Owned Company, enterprise seriously irresponsible or misuse of authority, malfeasance causing heavy losses to the interests of the state. However, the signing of the contract in the crime of dereliction of duty was "in the process of signing and fulfilling the contract, because of serious irresponsibility, fraud" into sin, play favouritism and commit irregularities caused by loss of bankruptcy, crime to "play favouritism and commit irregularities" into the crime condition, therefore, in 1997 after the implementation of the criminal law, no play favouritism and commit irregularities plot State-Owned Company, enterprise personnel is not serious negative liability or breach of privilege, the malpractice of public property, the interests of the state and the people suffered a major loss, can not be punished for the crime. In December 25, 1999, the Standing Committee of the National People's Congress passed the "PRC Criminal Law amendment", the provisions of article 168th of the criminal law of 1997 "play favouritism and commit irregularities caused by loss of bankruptcy crime," was amended, provisions for the State-Owned Company, enterprise staff, because of serious irresponsibility or breach of privilege, resulting in serious losses to state interests, according to the State-Owned Company, enterprise personnel dereliction of duty crime or State-Owned Company, enterprise personnel shall be investigated for criminal responsibility of breach of privilege, and State-Owned Company, enterprise personnel, play favouritism and commit irregularities, resulting in serious losses to state interests behavior, only belongs to State-Owned Company, enterprise personnel dereliction of duty crime or State-Owned Company, enterprise personnel of the crime of breach of privilege shall be given a heavier punishment. Accordingly, there is the December 24, 1999 "PRC Criminal Law amendment" implementation of the State-Owned Company, enterprise personnel malfeasance happened before (not including play favouritism and commit irregularities behavior), has not been processed or are in the process, how to apply the law problem. There are different in the judicial practice.
     One way of doing this is, different person be forgetful of one's duties, breach of privilege's time, respectively. For October 1, 1997, December 24, 1999 before the implementation of the act, even cause great losses to the interests of the state, no matter be seized, processing when, can not be punished for the crime. In September 30, 1997 before the implementation of the act, according to the provisions of the first paragraph of the criminal law twelfth, the main consideration of the behavior of law and the processing time, which a law on the behavior of the most favorable, at the same time, also without consideration because of person of themselves, resulting in the most favorable law lose effect. No longer applies, if the judicial authority was informed that the basic situation of the case before December 24, 1999, regardless of whether the investigation and (such as victims unit was reported, the relevant judicial authorities according to the criminal law, is not considered a crime; before December 24, 1999, the investigation organ have been placed on file for investigation or the people's court has accepted, but because the behavior person escapes from investigation or trial, resulting in cases are not disposed of, according to the provisions of the first paragraph of article twelfth of the criminal law, criminal law of 1979 or 1999 for the amendment to the criminal law, shall be investigated for criminal responsibility; in December 24, 1999, the judicial organs have not mastered the basic situation of the case, the behavior people although there is no escape from investigation or trial, but also did not surrender, according to Article twelfth of the criminal law. The provisions of paragraph first, apply
     The criminal law of 1979 or the 1999 amendments to the criminal law, criminal responsibility shall be investigated in human behavior.
     Another approach is the uniform application of the criminal law of 1997, shall not be regarded as a criminal.
     In order to apply the uniform criminal law, "summary" according to Article twelfth of the criminal law specified in Item 1 principles of legal application, and convenient operation, judicial clear: "for the December 24, 1999" PRC Criminal Law amendment "implement State-Owned Company, enterprise personnel of previous behavior (not including the play favouritism and commit irregularities behavior), has not been processed or are treatment, not in accordance with the amendments to the criminal law shall be prosecuted for criminal responsibility.
     (four) about the crime of malfeasance "play favouritism and commit irregularities in the understanding and application of" problem
     The ninth chapter of criminal law provisions of the crime of malfeasance had a total of 23, of which 13 clearly will be "necessary to play favouritism and commit irregularities" behavior of the constitutive elements of the crime of malfeasance or heavier punishment. But in the judicial practice, for the "favouritism", whether to include partial unit, collective and private, there are different opinions. Considering the "ordinary meaning private" refers to the personal, private, and staff of state organs to the interests of the unit, the implementation of breach of privilege, be forgetful of one's duties behavior, if the circumstances are serious, in accordance with the provisions of the first paragraph can be convicted of criminal law 397th penalties, does not affect their criminal responsibilities shall be investigated, "" clear "play favouritism and commit irregularities: summary of the crime of malfeasance the 'act' should be understood as sacrifice personal affair, self-interest."
      
     (the author unit: the Supreme People's court Xing Erting)