Taking advantage of his position to accept kickbacks (gifts, cash gifts, etc.). ) and seek benefits for those who send kickbacks (gifts, gifts, etc.). ) is a bribe;
In order to obtain relevant benefits, giving gifts (articles and gifts) in the form of kickbacks to obtain relevant benefits is called accepting bribes.
Bribery is illegal and criminal.
First, the difference between bribery and gift giving.
1. The boundary between the crime of bribery and the crime of giving gifts depends on whether the actor subjectively uses the convenience of the state staff to seek illegitimate interests for himself when giving gifts to the state staff.
2. The boundary between the crime of accepting bribes and the crime of accepting bribes by company and enterprise personnel, and the difference between them mainly lies in:
(1) The subject of the crime is different. Bribery can only be carried out by natural persons; The crime of bribing employees of companies and enterprises can be committed by both natural persons and units.
(2) The object of crime is different from the object. The object of bribery crime is the integrity of duty behavior, and the object of crime is only national staff; However, the object of the crime of bribing company and enterprise personnel is mainly the management order of the company and enterprise, and the object of the crime can only be the staff of the company and enterprise except the state staff.
Serious suspected criminal acts, once the amount is too large, constitute the crime of accepting bribes. Business operators shall not bribe the sale or purchase of commodities with property or other means. Whoever secretly gives kickbacks to the other unit or individual outside the account shall be punished as bribery; Other units or individuals who secretly accept kickbacks outside the account shall be punished as accepting bribes.
Second, what is bribery?
Bribery refers to the act of state functionaries taking advantage of their positions to ask for other people's property, or illegally accepting other people's property to seek benefits for others. State functionaries who, in economic exchanges, violate state regulations and accept kickbacks and handling fees in various names shall be punished as accepting bribes. At the same time, it should be noted that the crime of accepting bribes is different from asking for bribes, illegally collecting kickbacks and mediating bribes. If the circumstances of bribery are serious, they should be punished accordingly.
3. Where is the boundary between the crime of accepting bribes and non-crime of company and enterprise personnel?
1, amount standard
The boundary between crime and non-crime mainly depends on whether the amount of bribes reaches a large standard (more than 60 thousand yuan). If the amount is small, such as treating guests and giving gifts, these acts are generally carried out in public, with no obvious purpose of seeking benefits, which belongs to the category of general violation of discipline and does not constitute the crime of accepting bribes. However, we should pay attention to the transformation to bribery under certain conditions, such as bribery in the name of treating guests and giving gifts. In particular, directors, supervisors, managers and other senior managers of the company should pay more attention to the occurrence of bribery and damage to the interests of the unit in the name of treating guests and giving gifts and reciprocity.
2, pay attention to and accept the boundaries of gifts.
Pay attention to judgment when distinguishing the two:
(1) background of property exchange, such as whether the two parties have any relatives and friends in history and the extent of contact;
(2) the value of the current property;
(three) the reason, time and way of property exchange, and whether the property provider has any job requirements for the recipient;
(4) Whether the recipient takes advantage of his position to seek benefits for the provider.
3. Pay attention to the boundary between bribery and legitimate income.
The main difference between the two is whether they have paid the labor or not, and whether they have taken advantage of their positions. If the actor uses working hours to earn part-time income, but does not take advantage of his position, or obtains normal remuneration through legal acts, it cannot be considered as bribery.
4. The boundary between this crime and other acts such as soliciting and accepting commissions, kickbacks and handling fees.
The second paragraph of this article stipulates that employees of companies, enterprises or other units who, in violation of state regulations, accept kickbacks and service fees in various names and take them for personal ownership shall be punished as non-state employees for accepting bribes. However, if the monthly kickbacks and handling fees are not owned by individuals, or the unit accepts kickbacks and handling fees, even if it violates state regulations, it does not constitute this crime. Without taking advantage of his position, he sells products, buys materials and contacts business for others, and asks for or accepts property in the name of incentive fees. The specialized agencies established with the approval of the relevant competent departments of the state are engaged in providing information, introducing business, consulting services, etc., which do not violate the provisions of the state and cannot be considered as this crime. In this respect, the key to the difference lies in whether the people who ask for and receive kickbacks and handling fees are owned by individuals and conform to the provisions and consent of the state and relevant competent departments.
5. The boundary between this crime and the act of collecting reasonable remuneration.
The behavior of company and enterprise personnel to exchange their labor for reasonable remuneration within the scope permitted by laws, regulations, policies and the articles of association of the company and enterprise is different from bribery. For example, in the intermediary braking between enterprises and the market, with the approval of the relevant state authorities or the consent of the units, companies and enterprise personnel engage in legitimate business activities and technical and information consulting services to solve various technical problems for the production and development of enterprises, and get reasonable remuneration is labor income, which is reasonable labor remuneration, not bribery. The key to distinguish the crime of accepting bribes from the crime of obtaining reasonable remuneration for non-state staff is to see whether the property obtained by the actor belongs to labor income. If the actor takes advantage of his position to seek benefits for others and asks for or accepts other people's property in various names of "labor remuneration", if the amount is large, it should be considered as the crime of accepting bribes by non-state staff.
Legal basis:
Criminal law of the people's Republic of China
Article 385 Any state functionary who takes advantage of his position to extort money or property from others, or illegally accepts money or property from others to seek benefits for others, is guilty of accepting bribes.
State functionaries who, in violation of state regulations, accept kickbacks and handling fees in various names in economic exchanges and own them personally shall be punished as accepting bribes.