In fact, the judiciary has long foreseen this. As early as 2007, the Supreme People's Court and the Supreme People's Procuratorate (hereinafter referred to as Gao Liang) issued Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery (hereinafter referred to as Opinions on Bribery), which stipulated ten new types of bribes different from traditional cash bribes, and "buying a house at a low price" was impressively listed. According to the opinion about bribery,
State functionaries who take advantage of their positions to seek benefits for customers and buy houses, cars and other items from customers at prices significantly lower than the market shall be punished for accepting bribes.
Whether judicial personnel or defense lawyers, in the process of handling such bribery cases, how to determine whether it is a market-oriented discount or a cover for power and money transactions, the author makes a brief discussion on this and discusses it with you.
1. Is it significantly lower than the market price?
According to Liang Gao's Opinions on the Crime of Bribery, it is determined that the behavior of buying a house at a low price must meet the conditions of buying a house from the trustee at a price "significantly lower than the market price". However, the criminal law and related judicial interpretations have not set standards for what is "obviously" lower than the market price. How much is "obvious" below? What is "not obvious"?
(A) the absolute amount of the price difference is not the basis for identifying "obvious"
Some people think that the difference between the preferential price and the buyer's market price reaches the standard of accepting bribes of 30 thousand yuan, which can be considered as "obviously low price" In this regard, the author does not agree. In the current market environment of high housing prices, even if developers only give a discount of 1% to a set of ordinary buildings in first-tier cities, sometimes the difference is more than 65,438+10,000 yuan. Therefore, it is obviously too extreme to assume that state employees are suspected of "buying a house at a low price". Because there are many factors that affect developers' pricing, such as sales time, payment method, floor and apartment type. These will have an impact on the selling price. Buyers with strong bargaining power may also get corresponding discounts through their own bargaining. It is too harsh to think that the absolute price difference is "obviously" lower than the market price.
(two) the standard of civil law can not be identified as a criminal offence.
It has also been suggested that according to the Minutes of the Work Conference of National Courts on the Implementation of the Civil Code (hereinafter referred to as the Minutes of the Civil Code), "if the transfer price does not reach the guidance price of the trading place or 70% of the market transaction price, it can generally be considered as obviously unreasonable low price." It is concluded that the discount rate of 30% can be used as a criterion to judge whether it belongs to "obviously low price".
The author believes that the legal interests protected by civil law and criminal law are different, so the reference standards must not be generalized. The above-mentioned Minutes of the Civil Code stipulates that creditors have the right to apply to the court to cancel the debtor's behavior that may affect the realization of creditor's rights. The reason why the total price standard of "70% below the market price" cannot be determined is because the civil law should not only protect the realization of creditor's rights, but also protect the normal personal property transaction and circulation. However, the provisions of the criminal law on the crime of accepting bribes protect the legitimate interests of state employees in performing their duties and punish the behavior of trading power and money. Therefore, its severity should be higher than that of civil law. It is obviously too broad to take 70% of the market price stipulated in the Minutes of the Civil Code as the criterion for judging the "obvious" in bribery crimes.
(three) the price difference should be calculated according to the absolute quantity and relative proportion.
To sum up, the author believes that for the consideration of "obviously low price", we should not only consider the absolute difference between the normal market selling price and the actual purchase price, but also comprehensively evaluate the difference in total price, urban market environment and the location of the real estate. For example, in the core area of Shanghai, the buyer gets a price discount of 5%, which is only 3% lower than the discount of the developer for unspecified people, but the absolute amount of the difference reaches 600,000 yuan, which can basically be considered as "obviously" lower than the market price. Because, although the discount rate is not high, the difference of 600,000 yuan cannot be "bargained" according to common sense. Aside from the identity of the national staff of the purchaser and the power in his hands, the developer has no reason to make a profit. At the same time, when handling the case, the developer's sales records and internal preferential policy documents should be combined to exclude the situation that the actual sales discount of the developer to unspecified people is less than 9.5 fold.
Second, whether the preferential conditions are set for specific groups of people.
First of all, it depends on whether preferential trading conditions have been set in advance.
As a commodity with a large transaction volume, developers are interested in
The bottom line of house price concessions must be calculated in advance, and the preconditions for obtaining concessions are set, which is basically impossible for the time being.
If it is a temporary preferential policy formulated by state employees when buying a house, or a preferential policy forged by state employees to cover up the truth after buying a house, it is obviously impossible to identify the relevant preferential policies as normal market prices.
Therefore, when reviewing such cases, we should not only pay attention to the review of relevant witness testimony, but also collect documentary evidence such as the developer's internal sales policy documents and meeting minutes.
Review the time when preferential policies are formulated and when national staff buy houses, and judge whether to set preferential conditions in advance.
Secondly, it depends on whether other buyers enjoy the same preferential treatment.
In view of the variability of verbal evidence and the easy forgery of documentary evidence such as policy documents and meeting minutes.
If it is necessary to fully prove that the preferential treatment enjoyed by state employees is not exclusive because of their status as public officials, the case-handling personnel should pay attention to collecting evidence that is unlikely to be forged afterwards, such as sales records and real estate online signing records.
If no one has enjoyed the so-called preferential treatment before the national staff, the authenticity of the preferential policy documents provided by the developers should be in doubt.
On the contrary, if someone has enjoyed the same, similar or even lower price concessions before the national staff buy a house, after finding out the reasons for the concessions, it can be more accurate to judge whether the concessions enjoyed by the national staff are justified.
Finally, even the preferential treatment for the insiders of housing developers, such as national staff, should not be considered as abnormal preferential treatment.
Some people believe that the preferential price of buying a house enjoyed by a person with a specific identity cannot be regarded as the "market price".
Otherwise, all low-priced houses can be justified as special preferential houses, thus escaping legal sanctions.
The author opposes the above viewpoint.
In practice, in order to speed up sales, developers often set preferential housing prices for internal employees. Although the preferential housing price set for internal employees includes the nature of employee welfare, the preferential price is not absolutely exclusive. Interested parties can purchase houses in the name of employees, thus obtaining corresponding preferential prices.
In the final analysis, such employee internal welfare is still a normal marketing method.
Case No.975 of Criminal Trial Reference also confirms the author's point of view.
In this case, the defendant Hu bought a house at a preferential price of 7.5%. Although the preferential margin is very large, the court does not consider this fact to be a bribe, because the preferential margin has been enjoyed by internal employees in advance.
Third, whether to use the position to seek benefits for others.
If the first two points are the formal elements to judge the bribery of buying a house at a low price, then power rent-seeking is the essential element of buying a house at a low price. The essence of accepting bribes is the transaction of power and money. In the case of buying a house at a low price, the fundamental reason why the seller is willing to give preferential treatment is to bribe the national staff for their convenience and hope that the national staff will seek benefits for them. Therefore, it is the most important thing to judge whether the national staff use their position to seek benefits for others.
(a) "collecting money and not doing things" is regarded as seeking benefits for others.
According to the summary of the 2003 National People's Court Symposium on Economic Crime Cases, seeking benefits for others by state functionaries includes three stages: commitment, implementation and realization. As long as there is a stage of behavior, it can be considered as seeking benefits for others.
For example, developers have problems in paying taxes on projects. He gave the staff of the tax authorities a preferential purchase price obviously lower than the market price, and expressed the hope that the tax authorities would take care of paying taxes. Even if the staff of the tax authorities only verbally agreed, there was no specific behavior afterwards, and no specific care was achieved. That is, "collecting money and not doing things" can also be regarded as "seeking benefits for others".
(2) "Seeing through without breaking" is also considered to seek benefits for others.
According to Article 13 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery (hereinafter referred to as the Interpretation of Corruption and Bribery), knowing that others have specific entrusted matters shall be deemed as "seeking benefits for others". In other words, in the aforementioned case, the tax payment of the developer is problematic. Even though the developer and the staff of the tax authorities were tacitly aware of this, neither of them mentioned it when they took bribes. As long as the staff of the tax authorities know the intention of the developer subjectively, but still accept the special preferential treatment given by the developer, it can be concluded that the staff of the tax authorities promise to seek benefits for the developer, thus constituting the crime of accepting bribes. In practice, this subjective understanding of "seeing through without breaking" is mainly proved by the confessions of both the briber and the briber. Therefore, both the prosecution and the defense should pay attention to the examination of the authenticity and legality of the confession.
(3) Accepting "emotional investment" is still regarded as seeking benefits for others.
Still citing the above case, assuming that the developer has no flaws in tax payment, the reason why he gives special preferential treatment to the staff of the tax authorities is to "make a good relationship" with the staff of the tax authorities and make "emotional investment". Because of the administrative relationship between the tax administration department and the developer, the staff of the tax authorities have the convenience to seek benefits for the developer in the future, which may affect the legal performance of their duties in the future. In this case, according to the second paragraph of Article 13 of the Interpretation of the Crime of Corruption and Bribery, the staff of the tax authorities are still regarded as "seeking benefits for others". If it is determined that the special preferential treatment enjoyed by them is obviously lower than the market price, it can still be determined that the staff of the tax authorities constitute the crime of accepting bribes.
To sum up, although the "low-priced house purchase bribe" discussed in this paper is covered with the cloak of market transactions, it is somewhat confusing and hidden. However, it is not difficult to judge whether it is a crime in judicial practice as long as we grasp the essential characteristics of the transaction of power and money and see through the three elements of buying a house at a low price: price factor, preferential reasons and job connection with common sense.