The criminal law and the judicial interpretation of the crime of corruption

 

 

 

    A, punishmentMethod

 

    Article 382nd: 1, "state personnel who take advantage of their office, embezzle, steal, cheat or by other means of illegal possession of public property, is the crime of corruption.
2, 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.
3, with the person mentioned in the preceding two paragraphs with corruption, collusion, by the accomplice." 　　

    Article 383rd:"1, the crime of embezzlement, according to the seriousness of the case, were punished in accordance with the following provisions:
(1) the personal corruption in the amount of one hundred thousand yuan, department for more than ten years of fixed-term imprisonment or life imprisonment, and may concurrently be sentenced to confiscation of property; if the circumstances are especially serious, the death penalty, also be sentenced to confiscation of property.
(2) the personal corruption in the amount of fifty thousand yuan less than one hundred thousand yuan, more than five years in prison, and may concurrently be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to life imprisonment, confiscation of property.
(3) the personal corruption in the amount of five thousand yuan less than fifty thousand yuan, a year more than seven years in prison; if the circumstances are serious, seven to ten years in prison. An individual who embezzles less than ten thousand yuan in five thousand yuan of above, after committing the crime of repentance, positive gains, may be given a mitigated punishment or be exempted from criminal punishment, administrative sanctions shall be given by their unit or the higher authorities.
(4) an individual who embezzles less than five thousand yuan, if the circumstances are relatively serious, is less than two years imprisonment or criminal detention; if the circumstances are relatively minor, he shall be given administrative sanctions their unit or the higher authorities, as appropriate.
2, the corruption of untreated, according to the cumulative amount of punishment of corruption."

    Article 394th:"State functionaries who accept gifts official duties at home or in the foreign exchanges, in accordance with the state provisions and not the public, the larger amount, in accordance with the provisions of article 382nd, article 383rd convicted and punished."

    Article 271st:"1, company, enterprise or any other unit who, by taking advantage of his office, the unit's property for himself, the larger amount, is less than five years imprisonment or criminal detention; the enormous amount of, at more than five years in prison, and may concurrently be sentenced to confiscation of property.
2, State-Owned Company, enterprise or any other state owned units engaged in public service and State-Owned Company, enterprise or any other state owned units assigned to non State-Owned Company, enterprise or other unit personnel engaged in official business with the conduct, in accordance with the law 382nd, article 383rd of the regulations of conviction and punishment."

    Article 183rd:"1, personnel of insurance companies who take advantage of their office, deliberately fabricates the occurrence of an insured accident not false claims, defrauds insurance money all to himself, in accordance with the provisions of article 271st convicted and punished.
2, the state-owned insurance company staff and state-owned insurance company that is not owned by the state insurance company personnel engaged in official business with the conduct, in accordance with the provisions of article 382nd, article 383rd convicted and punished."

 

    Two, the judicial interpretation   

 

    The Supreme People's court "on the trial of corruption, embezzlement case how to identify several common crime issues of interpretation" -- act release No. [2000]15:

  "As the law of corruption or embezzlement crime, this is the case how to identify common crime problems are explained in the following:

    The first act and the national staff collusion, by taking advantage of national staff, embezzle, steal, cheat or together with other means of illegal possession of public property, the embezzlement accomplice.

   Second people and companies, enterprises or other units of staff collusion, by taking advantage of company, enterprise or other unit personnel, the unit of property illegally for himself, amount is large, the embezzlement accomplice. 　　

   The third 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, the common will of the unit property illegally for himself there, according to the nature of prime criminal conviction."   

    

    The Supreme People's court "reply" on corruption and embezzlement interest should be included in the embezzlement crime amount -- Method of complex [1993]11:

   "Corruption, misappropriation of public funds (including bank deposit) to the front by corruption, misappropriation of public funds, the interest is a part of corruption, misappropriation of public funds behavior to victims unit causes the actual economic loss, should be regarded as illegal income defendants, together with its corruption, misappropriation of public funds together to recover, but not as corruption, embezzlement crime amount calculation."

 

    The Supreme People's Procuratorate "about directly accepted by the people's procuratorates shall place the case on file for investigation cases on file standards (for Trial Implementation)" -- 19990916 first first:

   "1, the crime of corruption refers to the state personnel who take advantage of their office, embezzle, steal, cheat or by other means of illegal possession of public property act.

   2, 'using the convenience of duty' refers to the use of his position in charge, management, handling power and convenient conditions of public property.

   3, 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, the corruption crime shall be prosecuted for criminal responsibility.

   4, 'the entrusted management, management of state-owned property' is the result of contracting, leasing, such as hiring and management, management of state-owned property.

   5, the state-owned insurance company staff and state-owned insurance company, insurance company that is not owned by the state to engage in public service using the convenience of duty, deliberately fabricates the occurrence of an insured accident not false claims, defrauds insurance money all to himself, shall be investigated for criminal responsibility in the crime of corruption.

   6, State-Owned Company, enterprise or any other state owned units engaged in public service and State-Owned Company, enterprise or any other state owned units assigned to non State-Owned Company, enterprise and other non state owned units engaged in public service, taking advantage of his position, the unit of property accounted for some non law, shall be investigated for criminal responsibility in the crime of corruption.

   Accept a gift of 7, the national staff official duties at home or in the foreign exchanges, in accordance with the state provisions and not the public, large amount of corruption crime, the criminal responsibility shall be investigated.

   8, for any of the following circumstances, should be placed on file:

(1) the personal corruption in the amount of 5000 yuan;

(2) an individual who embezzles less than 5000 yuan, but with corruption, rescue, flood prevention, disaster relief, poverty alleviation, immigration, allowances, relief funds and materials and collected money and materials, the stolen money, confiscated properties, suspension property, as well as corruption means bad, destruction of evidence, the transfer of stolen goods and other festival.

 

    The Supreme People's court "about corruption, bribery, embezzlement crime according to the Several Provisions" correctly apply probation -- [1996]21 methodNo.

　　A state functionary embezzlement, bribery, in the amount of two thousand yuan less than ten thousand yuan, the circumstances of the crime is lighter, can take the initiative to confess, actively chairman, shows true repentance, can be placed on probation.

Two, the national staff of corruption, bribery ten thousand yuan of above, except with a surrender or meritorious service and other statutory mitigating circumstances, generally not applicable probation.

National staff embezzlement, bribery amount of ten thousand yuan less than fifty thousand yuan, according to the specific circumstances of a case, criminal law article fifty-ninth paragraph second mitigated punishment in prison for three years following the sentencing, is generally not applicable probation. The circumstances of the crime is lighter, positive gains, and play a key role in a major production, scientific research project, with special needs, or other special circumstances, can be placed on probation, but must be strictly controlled.

Three, the following corruption, bribery, embezzlement crime not applicable probation:

(a) crime the country, collective and the people suffered major losses;

(two) no return, no repentance;

(three) the plot crime motive, means bad, or will be money for play the market, smuggling, gambling and other illegal activities;

(four) belong to the principal if the circumstances are serious common crimes, or commit several crimes;

(five) had received administrative punishment or criminal punishment for economic crimes of;

(six) crime involving property belongs to the national disaster relief, rescue, flood prevention, allowances, relief funds and materials, if the case is serious.

 

     The NPC Standing Committee "on the 'people's Republic of China Criminal Law' ninety-third-- 2000.4.29 section second interpretation ":

    The villagers committee and village grassroots organization personnel to assist the people's Government in the following administrative work, which belongs to the criminal law provisions of the second paragraph of the ninety-third "engaged in official business in accordance with the law personnel":

(a) disaster relief, rescue, flood prevention, special care, poverty, immigration, the management of relief funds and materials;

(two) social charitable contributions to the cause of money and property management;

(three) the operation and management of state-owned land;

(four) the management of compensation for requisitioned land;

(five) generation of sign, and remit tax;

(six) the family planning, the household registration, recruitment;

(seven) other administrative work to assist the people's government in.

   The official village committee Village of grass-roots organizations in the provisions of the preceding paragraph, taking advantage of his position, illegal possession of public property, embezzlement, extort or accept bribes, which constitutes a crime, shall be governed by the provisions of article 382nd of criminal law and the 383rd crimes of corruption, misappropriation of public funds, 384th, 385th and 386th of bribery crime the.

 

     The Supreme People's court, the court cases involving economic crimes "seminar" -- [2003]167 methodNo.

　　The main one, about crime and malfeasance crimes of embezzlement and bribery

(a) identification of staff of state organs

State organ personnel referred to in the criminal law, which are engaged in public service in state organs, including the personnel engaged in public affairs at all levels of state organs, administrative organs, judicial organs and the military authorities in the personnel:

According to the provisions of the relevant legislative interpretation, personnel of the exercise of state administrative authority in accordance with the provisions of laws, rules and regulations on the organization, or engage in business in the state organs exercise their functions and powers on behalf of the national organization of personnel, or are not included in the national staffing agencies engaged in public affairs in state organs and personnel, as the personnel of state organs. In the township (town) above China Communist Party organs, the people's Political Consultative Conference institutions engaged in public affairs, in judicial practice, it shall be deemed that the personnel of state organs:

(two) the state organs, enterprises, institutions, State-Owned Company that personnel assigned to non State-Owned Company, enterprises, institutions, social organizations engaged in public service

The delegation appointed, namely, dispatch, the variety of forms, such as the appointment, assignment, 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, enterprises, institutions, State-Owned Company in the non State-Owned Company, enterprises, institutions, social organizations engaged in organization, leadership, supervision, management and so on, 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, such as state organs, State-Owned Company, enterprise, unit in organization, leadership, supervision, management in state-owned or shares of the Limited by Share Ltd personnel, should be based on the State functionaries: State-Owned Company, enterprise restructuring as the Limited by Share Ltd. State-Owned Company, enterprise work personnel and Limited by Share Ltd newly appointed personnel, in addition to represent the state-owned investors to exercise supervision, management authority of people not to state functionaries.

(three) "identified other personnel engaged in official business in accordance with the law."

The provisions in the second paragraph of the criminal law ninety-third "engaged in official business in accordance with the laws of the people" should have two characteristics: the state management function in specific conditions; two are engaged in public service according to law. Specific include: (1) the people's congresses at various levels shall perform their duties according to law representative; (2) to understand the people's jury trial duties; (3) 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; (4) other personnel authorized by law to engage in public service.

(four) on the "engaged in official" understanding

In public, is meant to represent the state organs, enterprises and institutions, State-Owned Company, and people's organizations perform organization, leadership, supervision, management and other functions. Business is mainly associated with the functions and powers of the public affairs and supervision, management of state-owned property duty activities. Such as the national office working personnel shall perform their duties according to law, the directors of the State-Owned Company, managers, supervisors, accounting, cashier personnel management, supervision of state-owned property and other activities, to engage in public service. Those who do not have the authority to content services, technical services, such as assistant conductor etc., are engaged in the work, is generally not considered official.

　　Two, about the crime of corruption

(a) that the accomplished offense and the attempted crime of corruption

The crime of embezzlement is a for the purpose of illegal possession of the property crime, theft, robbery, fraud and other crimes against property, should be based on whether the actor has an effective control of the property to distinguish between corruption crime accomplishment and attempted standard. The action of taking advantage of duty,The implementation of the false flat account of corruption, but the public property is not the actual transfer, or has not yet been behavior control was seizedCorruption, shall be determined as attempted: behaviorControl of public property, whether the property as one's own, does not affect the corruption crimeIdentification of.

(two) "by the determination of entrusted management, management of state-owned property"

The provisions in the second paragraph of the criminal law 382nd "entrusted management, management of state-owned property", refers to theBy contracting, leasing, temporary employment management, managementState owned property.

(three) identified staff collusion of national officials and non national common illegal possession of property units behavior

For national staff collusion with others, the common illegal possession of property units of behavior, should be in accordance with the "Supreme People's Court on corruption, shall be convicted and punished embezzlement case how to identify several common crime question explanation". 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.In the judicial practice,If according to the actual circumstances of the case, the common crime in joint crime status, effect is quite difficult to distinguish crime, master, can be convicted and punished embezzlement.

(four) common corruption crimes "an individual who embezzles the cognizance of"

The provisions in the first paragraph of the criminal law 383rd "an individual who embezzles," in the common corruption crimes should be understood asPersonal participation or organization, command of joint corruption amount, not by individual actual share the money amount to.An accessory to the common crime of corruption, shall be in accordance with theCommon corruption in the participating amountDetermine the sentencing range, and in accordance with the provisions in the second paragraph of the criminal law twenty-seventh, a lighter, mitigated punishment or be exempted from punishment.

............

   Four, (eight) the embezzlement of public funds into corruption identification

The main difference between the crime of embezzlement of public funds and corruption is the behavior of peopleThe purpose of illegal possession of public funds is subjective:Embezzlement is transformed into corruption, should according to the subjective and objective consistent principle, and identify the specific judgmentThe subjective purpose of illegal possession of public funds is --In the judicial practice, can have one of the following circumstances that the actor has the purpose of illegal possession of public funds:

   1 according to the "Supreme People's Court on Several Issues concerning the specific application of law in trial of misappropriating public funds to explain behavior) Provisions Article Sixth"Carrying the misappropriation of public money", the money part which carries the misappropriation, corruption crime.

The 2 actThe embezzlement of public funds to take false invoices flat accounts, destruction of relevant accounts and other means, the misappropriation of public funds have been difficult in the unit of financial accounts, reflected, and no return behavior, the crime of corruption should be punished.

The 3 actInterception unit income is not recorded, illegal possession, the possession of public funds is reflected in the financial accounts, and no return behavior, the crime of corruption should be punished.

4There is evidence to prove that the actor has the ability to returnThe misappropriation of public fundsBut refused to return, and hide misappropriation of public funds to, the crime of corruption should be punished.

 

     The Supreme People's court "national courts in cases of financial crimes seminar" -- [2001]8 methodNo.

    The cognizance and punishment for 3, account customer funds illegally lending, lending behavior

A bank or other financial institutions and their staff for the purpose of profit, taking absorption customer funds not recorded, the customer funds for illegal lending, loans, causing major losses, with account customer funds illegally lending, loans to the crime. For the purpose of making profits, refers to the financial institutions and their staff for profit or individual units, does not have the goal, does not constitute the crime. Here the "profit", generally refers to seek illegal income account customer funds illegally lending, loans generated, such as interest, price etc.. For a human to obtain a loan payment, charges, should according to the specific situation: the banks or other financial institutions with accounts and foreign customers money illegally lending, loans, charge commissions, fees, should be identified as "profit"; the bank or other financial institution personnel who take advantage of their office convenience for customers, account fund illegal lending, loans, kickbacks, fees, smaller, with "profit" punished;The bank or other financial institution staff will be a personPayment to the unitCommissions, feesThe secret for himselfA large amount of corruption, crime;The bank or other financial institution staff taking bribes, with account customer funds illegal lending, loans, take a person's property, or illegally accept other property, or kickbacks, fees, amount is large, the conviction and punishment of bribery crime. Absorption of client funds not accounted for, is not credited to the financial institutions, statutory deposit accounts, in order to escape the country financial regulation, whether to establish legal books of accounts, no influence of the crime.

 

      The Supreme People's court, the Supreme People's Procuratorate "on some issues of the determination of voluntary surrender, meritorious service, sentencing opinion" -- for the duty crime cases (method [2009No. 13))

    Four, on the situation of the stolen money
Corruption in all or most of the stolen money recovered, the general should consider a lighter punishment.
Cases of bribery in all or most of the stolen money back, as the case may be discretionary lighter punishment.
The criminals and their relatives or active return in the case handling organ Booties recovery process actively cooperate, should be in the measurement of penalty and the process of investigating and handling cases according to terms of Booties recovery difference.
The duty crime cases on file, to restore economic losses of criminals and their relatives and friends, to restore the judicial organ or the crime unit and the superior departments in charge of economic losses due to objective reasons, or to reduce economic losses, shall not be deducted, but can be used as a discretionary lighter punishment plot.

 

    The Supreme People's court "on several issues of specific application of the law cases of embezzlement explanation" -- act release No. [1998]9 sixth:

 "Carry the misappropriation of public money, in accordance with the provisions of article 382nd of the criminal law, article 383rd convicted and punished."