The identification of "seeking benefits for others" must be based on the convenience of employees' positions. Without the convenient support of state staff, seeking benefits for others, even if it is illegal, does not constitute the crime of accepting bribes.
In 2003, the Minutes of the National Symposium on the Trial of Economic Crime Cases (hereinafter referred to as the Minutes of the Meeting) stipulated that seeking benefits for others includes three stages: commitment, implementation and realization. As long as there is a stage of behavior, such as when the state staff accepts the property of others, they promise to seek benefits for others according to the specific entrusted matters put forward by others, which has the elements of seeking benefits for others. Accepting other people's property knowing that there are specific entrusted matters is regarded as a commitment to seek benefits for others. In the minutes of the meeting, the promise, implementation and realization of seeking benefits for others, as well as the behavior of accepting their property knowing that others have specific entrusted matters, are regarded as "seeking benefits for others". Among them, the implementation and realization of seeking benefits objectively exist the behavior of using the convenience of position to seek benefits for bribers; Commitment to seek benefits for others, although not taking advantage of his position, but explicitly or implicitly taking advantage of his position to make profits. However, knowing that others have specific entrusted matters and accept their property, it is only necessary to prove that the briber subjectively knows or should know that the briber has specific entrusted matters and accepts his property, and it is not necessary for the briber to have specific profit-making behavior.
Interpretation of Bribery Cases enriches and develops the connotation and extension of "seeking benefits for others" on the basis of Meeting Minutes. The Interpretation of Bribery Cases adds the case of "accepting other people's property without asking after performing their duties", that is, accepting other people's property after performing their duties.
To constitute this crime of accepting bribes, there must be two elements: first, the actor was not required to perform his duties, that is, the actor naturally performed his duties according to law, and at this time the briber did not say hello or deliver property; Second, after performing his duties, the briber sends his own property out of gratitude, repayment and other reasons, and the actor receives property for this purpose.
In other words, the so-called bribery after the event must be based on the position convenience of the briber. If there is evidence to exclude the actor from accepting property based on his previous performance, it cannot be considered as "seeking benefits for others", and then it cannot be considered as the crime of accepting bribes. For example, someone knows someone because of their work behavior, and then they get to know each other and become friends. Knowing that Party A is an expert in stock trading, Party A and Party B entrust their own money to Party A for stock trading, and stipulate that the losses shall be borne by Party A and Party B, and the gains shall be shared equally by both parties. Whether a company accepts its property for the benefit of a company depends on what consideration a company entrusts a company to do stock trading, whether it is "grateful" based on a company's previous performance, or whether it really trusts a company's stock trading technology because of familiarity. If there is sufficient evidence to prove that Party B gave Party A property in the name of cooperative stock trading out of gratitude for Party A's previous performance of duties, it shall be deemed that Party A took bribes; On the other hand, it cannot be regarded as the crime of accepting bribes. Although A is careless in making friends as a public official, it does not constitute the crime of accepting bribes. Those who violate party discipline and state laws should be punished according to discipline.
Whether accepting bribes beforehand or afterwards, the act of accepting property must involve "taking advantage of one's position". Article 15 of the Interpretation of Bribery Cases stipulates that if multiple bribes are not handled, the amount of bribes will be calculated cumulatively. State functionaries took advantage of their positions to accept the property of the trustee many times before and after, seeking benefits for the trustee. If the amount of property received before entrustment is more than 10,000 yuan, it shall be included in the amount of bribes. The content of this article is popularly called "emotional investment bribery" by some criminal law scholars, which means that bribers ambush to deliver property in advance for "long-term investment"; Or national staff transport property in various names after performing their duties for a long time, which is actually to thank them for performing their duties to cover up the essential characteristics of power and money trading in bribery crimes. This interpretation focuses on the performance of duties, effectively extending the determination of bribery from front to back, reflecting the determination of judicial organs to severely punish bribery crimes. Compared with previous judicial interpretation documents such as meeting minutes, this interpretation is quite extensive. According to the minutes of the meeting, if a state functionary takes advantage of his position to seek benefits for the trustee and agrees with the trustee in advance to accept the trustee's property after leaving office, which constitutes a crime, he shall be convicted and punished for accepting bribes.
In 2007, the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery (hereinafter referred to as the Opinions) made it clear that the time agreed by both parties can be before and after taking advantage of their positions to seek benefits, but it is still required that the agreed content is to accept the trustee's property after leaving office. Those actually accepted after leaving office should be punished as bribery, and the part of accepting the trustee's property before leaving office and the property received after leaving office should be included in the amount of bribes.
Comparing the three judicial interpretations, the interpretation logic of meeting minutes and opinions is basically consistent with the identification standard, and the opinions slightly adjust the meeting minutes, which limits the identification scope of accepting bribes after leaving office. Look at the provisions of Article 15 of the Interpretation of Bribery Cases. No matter whether the bribee receives property on the job or after leaving the job, as long as he uses the convenience of his position to seek benefits for the trustee, the property received afterwards should be included in the amount of bribes. If the amount of property received before entrustment reaches more than 10 thousand yuan, it must also be included in the amount of bribes. It should be emphasized that with reference to the provisions of the first paragraph of Article 15, it is obvious that the property that has been received before should be calculated cumulatively, and if it reaches more than 10,000 yuan, it should be included in the amount of bribes. Article 15 does not stipulate the "before and after" time span for taking advantage of his position to seek benefits for the trustee. Is it necessary to limit the time in practice to prevent the identification from being too wide?
The author believes that there is no need to set a special time limit to avoid mechanically identifying the crime of accepting bribes. The key is to grasp the internal logical relationship between taking advantage of one's position and receiving property. It is not the key to judge whether the internal logical connection of power and money transactions is established, the order of performing duties and receiving money, and the time interval between performing duties and receiving money. It is important to realize the inherent nature of the crime of accepting bribes by exchanging false appearances for property to meet personal interests.
Yangzhou lawyer/Yangzhou