2014-05-08 Source: referee documents Browsing times:298
Chengdu Intermediate People's Court of Sichuan Province, criminal verdict
(2012) Chengdu Criminal Initial No. 269
Public prosecution organs of the Chengdu People's Procuratorate of Sichuan Province.
Defendant Yan Rencai.
Defender Chen Wu, Sichuan Zhigao Shoumin Law Firm.
Defender Zeng Li, lawyer of Sichuan Zhigao Shoumin Law Firm.
Sichuan Chengdu Municipal People's Procuratorate to Cheng Procuratorate (two) criminal prosecution (2012) No. 20 indictment, on May 23, 2012 to this court. This court formed a collegial court according to law, public hearing of this case. The Chengdu Municipal People's Procuratorate of Sichuan Province appointed Acting Procurator Qin Yongchun to appear in court to support the public prosecution. The defendant Yan Rencai and his defenders Chen Wu and Zeng Li appeared in court to participate in the proceedings. The trial is now concluded.
The Chengdu Municipal People's Procuratorate of Sichuan Province alleges that the defendant Yan Rencai served as the deputy director of the Jintang County Urban and Rural Construction Bureau from July 2008 to February 2011 and was approved by the office of the Jintang County State-owned Assets Management Committee to serve as the general manager of the wholly state-owned enterprise, Chengdu Jintang Jianzhu Investment Company (renamed Chengdu Garden and Water Town Urban and Rural Construction Investment Limited Liability Company hereinafter referred to as Jintang Jianzhu Investment Company) in September 2008, which is a wholly state-owned enterprise. hereinafter referred to as Jintang Construction Investment Company).
In July 2008, Jintang Construction Investment Company, as the project owner of the post-disaster resettlement housing construction in Jintang County, contracted the construction of the fifth bidding section of the second phase of Jintang County Chau City Garden to Jintang Tongda Construction Limited Liability Company (hereinafter referred to as Tongda Company). There is no building construction contracting qualification of the individual operator Hu Qingping (another case) through the Jintang County Urban and Rural Construction Bureau of the former director of the Wen Bin (another case) of help, from the company to get the Chau City Garden project 4 housing construction works, Hu Qingping in order to thank Yan Rencai in the allocation of project funds to help, from September 2008 to the beginning of 2011 has been six times to give Yan Yan Yancai cash ** ** (in the same currency as the following). The amount of RMB 200,000 (the same currency as below) was given to Yan Rencai six times from September 2008 to the beginning of 2011 in cash***, and Yan Rencai accepted them all.
Chengdu Municipal People's Procuratorate of Sichuan Province prosecuted the allegations of the above facts and the evidence produced in court are relevant documentary evidence, witness testimony, the defendant confession. Chengdu Municipal People's Procuratorate of Sichuan Province prosecution that the defendant Yan Rencai, as a state employee, taking advantage of his position, illegally accepted 200,000 yuan in cash for others, and seek benefits for others, his behavior has constituted the crime of accepting bribes, and submitted to this court for sentencing in accordance with the provisions of Article 385 and Article 386 of the Criminal Law of the People's Republic of China **** and the State.
The defendant Yan Rencai did not dispute the charges and facts, and believed that he had surrendered, requesting a lighter or mitigated punishment. His defense put forward the following mitigating and lessening of punishment: 1. Yan Rencai for Hu Qingping disbursement of project progress is the normal performance of their duties, the public prosecutor accused Yan Rencai of using the convenience of his position for the benefit of others, the evidence is insufficient; 2. Yan Rencai has the circumstances of the surrender, can be mitigated, less severe penalties; 3. Yan Rencai pleaded guilty to the charges, repentance, withdrew all of the stolen money, discretionary mitigating punishment.
Defendant Yan Rencai's defense, in support of his defense, produced the following defense evidence:
1. Defendant Yan Rencai's cell phone call records to prove that Yan Rencai received a call from the Anti-Corruption Bureau of the Chengdu Municipal People's Procuratorate at 0:18 a.m. on February 13, 2012, and that the duration of the call was 36 seconds.
2. Sichuan Province administrative and institutional funds settlement bills to prove that Yan Rencai's relatives withdrew 200,000 yuan of stolen money on July 24, 2012.
3. A written statement issued by witness Zhang Hongjun (Yan Rencai's driver) to prove that on the night of February 12, 2012, Zhang Hongjun drove Yan Rencai to the Chengdu People's Procuratorate, and that after arriving at about 0:30 a.m. the next morning, Yan Rencai entered the city procuratorate.
The trial found that from July 2008 to February 2011, the defendant Yan Rencai served as Jintang County Urban and Rural Construction Bureau deputy director and Jintang Construction Investment Company (later renamed Chengdu Garden City Urban and Rural Construction Investment Company) general manager position, to assist the director and Jintang Construction Investment Company chairman Wen Bin management of Chengdu Jintang construction investment company's overall work.2011 February to During the period from February 2011 to February 2012, Yan Rencai served as the chairman of Jintang Construction Investment Company and the director of Jintang County Urban and Rural Construction Bureau, respectively, and presided over the overall work of Jintang Construction Investment Company and Jintang County Urban and Rural Construction Bureau.
In July 2008, Jintang Construction Investment Company, as the project owner of the post-disaster resettlement housing construction in Jintang County, contracted Jintang County's "Chau City Gardens" project Phase II, Section V project to Tongda Company for construction. Individual contractor Hu Qingping in the case of not having construction engineering construction contracting qualifications, through the Jintang County Urban and Rural Construction Bureau of the former director of the Wen Bin (another case to deal with) help, from the company to get the "Chau City Garden" project 4 housing construction works, because Yan Rencai is responsible for the Jintang Construction and Investment Company related to the construction of the project's funds disbursement work. Hu Qingping found Yan Rencai, requesting him to take care of his own construction works in the disbursement of progress payments, Yan Rencai agreed to sign and disburse progress payments in a timely manner in accordance with the progress of the construction works undertaken by Hu Qingping. Hu Qingping to thank Yan Rencai help, from September 2008 to the beginning of 2011 has six times to Yan Rencai cash *** total 200,000 yuan, Yan Rencai are accepted.
March 29, 2011, Chengdu Municipal People's Procuratorate Anti-Corruption Bureau received a report of Jintang County, the former director of the Construction Bureau of Wen Bin, Yan Rencai suspected of bribery clues and to start the initial investigation. February 14, 2012, Yan Rencai by the notification of the case, and truthfully confessed to the facts of accepting the 200,000 yuan of cash sent by Hu Qingping.
During the trial of this case, the defendant Yan Rencai's relatives on behalf of his return of 200,000 yuan of stolen money.
The above facts are confirmed by the following evidence of the prosecution and defense after the trial:
I. Documentary and material evidence
1. The source of the case and the blocking through, confirming that on March 29, 2011, Chengdu Municipal People's Procuratorate Anti-Corruption Bureau of the investigation of the first place to receive a report of the Jintang County, former director of the Bureau of construction, Wen Bin, Yan Rencai suspected of bribery clues. 2012 February 14, Yan Rencai by the Chengdu Municipal People's Procuratorate Anti-Corruption Bureau of Investigation. Yan Rencai by the Chengdu Municipal People's Procuratorate Anti-Corruption Bureau notified to the case.
2. Resident population information, Yan Rencai basic information and resume, the *** jintang county party committee organization department, jintang county people's government, jintang county state-owned assets management committee office and jintang county people's congress standing committee issued by the office of the document, confirming that the defendant Yan Rencai's domicile and successively served as jintang county city and countryside construction bureau, director, general manager of the jintang construction company, chairman of the board of directors of the relevant office. The situation.
3. Jintang government letter (2008) No. 42 documents, Jintang County Urban and Rural Construction Bureau "on the relationship between the Bureau and the county construction company's description" and Jintang construction company's enterprise legal person business license, tax registration certificate, confirmed that the construction company (later renamed Chengdu garden city urban and rural construction investment limited liability company) is the construction bureau of Jintang County set up a wholly state-owned company, registered in June 2008, Yan Rencai, in September 2008, the defendant Yan Rencai, the defendant's household registration, and successively served as deputy director of the construction bureau, director of the general manager, chairman of the board of directors of the relevant post situation.
4. Jintang County Urban and Rural Construction Bureau "on the bureau leadership team members of the division of labor notice" and other documents, confirming that the defendant Yan Rencai in Jintang County Urban and Rural Construction Bureau as deputy director of the period, to assist in the management of the Jintang construction investment company's overall work.
5. Vouchers of payment from Jintang Construction and Investment Company to Tongda Company confirm that the defendant Yan Rencai signed the invoice of Jintang Construction and Investment Company to Tongda Company for the payment of advance payment for the contract and the project and agreed to make the payment.
6. The minutes of the meeting, construction contract, bidding information and the explanation of the subcontracting of part of the project to Hu Qingping by Tongda Company on the "Chau City Garden" Phase II resettlement housing project confirm that the "Chau City Garden" Phase II resettlement housing project was approved by the Jintang County Government, and that the project had been approved by the Jintang County Government. The project was finalized by Jintang County Government, and Jintang Construction and Investment Company, as the owner unit, contracted the fifth bidding section of the project by Tongda Company through competitive negotiation. After Tongda subcontracted the project to Hu Qingping, Tongda did not participate in the project management and only charged 5% management fee. After JIC allocated the project fund to Tongda, Tongda asked Hu Qingping to charge the project fund through the invoice of materials and labor payroll before allocating it to Hu Qingping.
7. Vouchers related to the payment from Tongda to Hu Qingping confirm that Hu Qingping received the project funds from Tongda in the name of building materials and laborers' wages.
8. Yan Rencai's account details in the Construction Bank with the tail number "38272", confirming that Yan Rencai's personal account in the Construction Bank deposited 6,000 yuan on October 23, 2008, and 20,000 yuan on October 17, 2010,
9. Jintang County Urban and Rural Construction Bureau's information statement. , confirming that Yan Rencai did not submit gifts and money to the discipline inspection department during his term of office.
10.cell phone call list, confirming that at 0:18 on February 13, 2012, the landline 02887782267 dialed Yan Rencai's cell phone 13568863878, and at 1:08 on the same day Yan Rencai dialed the landline with his cell phone.
Two, witness testimony
1. Witness Hu Qingping (bribe) testimony, confirming that in July 2008 or so, Hu Qingping in the name of the project manager of the company, from the company's construction of the company's construction of "Chau City Gardens" project in the individual contracted the construction of four buildings, the project's mode of payment The payment method of the project is firstly allocated by the construction investment company to the company, and then paid by the company to Hu Qingping, Hu Qingping according to the agreement to pay 5% of the management fee to the company. Because Yan Rencai was Jintang County Construction Bureau deputy director, in charge of financial work, but also "Chau City Garden" project contractor Jintang Construction Investment Company's general manager, "Chau City Garden" project payment must be approved by him. 2008 October or so, Hu Qingping, in order to get the project payment earlier. In order to get the project money earlier, Hu Qingping found Yan Rencai, request Yan Rencai in the disbursement of project money to give care, Yan Rencai agreed, after Yan Rencai according to the progress of Hu Qingping construction works, timely signing and disbursement of the project money. In order to express gratitude, Hu Qingping repeatedly gave Yan Rencai cash *** counting 200,000 yuan, the first time is the 2008 Mid-Autumn Festival, Yan Rencai live in front of the district sent 60,000 yuan in cash; the second is the day before the Spring Festival in 2009, the night market in Zhaozhen Street sent 10,000 yuan in cash; the third is the day before the Spring Festival in 2010, the day before the Yan Rencai home downstairs sent 20,000 yuan in cash; the fourth is the day before the Dragon Boat Festival in 2010, the fourth is the day before the Dragon Boat Festival, the day before the Dragon Boat Festival. On the day before the 2010 Dragon Boat Festival, 60,000 yuan in cash was delivered under Yan Rencai's house; the fifth time was on the day before the 2010 Mid-Autumn Festival, 20,000 yuan in cash was delivered under Yan Rencai's house; the sixth time was on the day before the 2011 Spring Festival, 30,000 yuan in cash was delivered under Yan Rencai's house. Yan Rencai each time was a little excuse, and finally accepted all. The source of the bribe money, some of the cash taken from the project reserve, some of the money withdrawn with the Farmers and Merchants Bank card.
2. Witness Yi Chuanlun (Tongda legal representative) testimony, confirming that the company is a state-owned company under the Construction Bureau of Jintang County. 2008 August, Tongda through competitive negotiation won the bidding "Chau City Garden" resettlement housing project of the second and fifth sections of the project. Due to the company's state-owned enterprises, fewer personnel, so after the winning project all subcontracted to private bosses to build, after the Jintang County Construction Bureau Director Wen Bin to Yi Chuanlun call, so that Yi will be "Chau City Gardens" project of the four buildings to the individual personnel Hu Qingping construction, Yi Chuanlun will be the project of 19, 20A, 22, 24, etc. four buildings to build the project, and the construction of the project. Four buildings in the project, such as 19, 20A, 22, 24 building construction works to Hu Qingping, the total bid is about 15 million yuan. Because Hu Qingping himself is not qualified, Tongda company then set up a project department, orally appointed Hu Qingping for the construction team leader, but in essence, Tongda company is the "Chau Cheng Hua" garden this project subcontracted to the Hu Qingping individual in the do, Hu Qingping in the cost of the project and profits are not related to the Tongda company, just need to pay 5% of the total construction cost of the company, the company is not the same, just need to pay 5% of the total construction cost of the company, the company is not the same. Company to pay 5% of the total cost of the management fee. Construction investment company to the project funds allocated to Tongda company, Tongda company and then the corresponding project funds allocated to Hu Qingping, Hu Qingping invoices and labor payroll to flush out the project funds, Tongda company on the authenticity of the invoices provided by Hu Qingping do not do the audit.
3. Witness Huang Desheng (former deputy general manager of the company) testimony, confirmed that Huang Desheng in the company's tenure in the "Chau City Garden" project served as a project manager's position, because the project part of the project subcontracted to Hu Qingping, Huang Desheng is responsible for the application for payment of construction funds in the Hu Qingping only when the submitted Huang Desheng was only responsible for signing the invoices for material costs and workers' salary statements submitted by Hu Qingping when he applied for payment for the project.
Third, the defendant confessed
Defendant Yan Rencai confessed that in 2008, the construction company as a project in Jintang County, Huaikou Town, the construction of residents resettlement "Chau City Garden" project, Tongda won the bidding for the construction of six residential buildings, Hu Qingping from the company to get one of the construction of four residential buildings. Hu Qingping personally got 4 residential buildings from Tongda Company. Yan Rencai was the general manager of CIC and was responsible for the disbursement of funds to CIC for the relevant construction projects. in September 2008, Hu Qingping found Yan Rencai and hoped that Yan Rencai would disburse the project progress payment in time, and Yan Rencai agreed to Hu Qingping's request. After that, Yan Rencai according to the progress of Hu Qingping construction works in a timely manner after signing the approval of the progress of the project on time to Tongda company, Tongda company and then to Hu Qingping, Hu Qingping in order to thank Yan Yan Yancai's help, successively six times to give Hu Qingping 200,000 yuan in cash. The first time is the day after the Mid-Autumn Festival in 2008, Yan Rencai in their own telecommunication community near the acceptance of Hu Qingping sent 60,000 yuan in cash; the second is the day in early 2009, Yan Rencai in Jintang County Zhao Town night market street acceptance of Hu Qingping sent 10,000 yuan in cash; the third is the day in early 2010, Yan Rencai in the telecommunication community near the acceptance of Hu Qingping sent 20,000 yuan in cash; the fourth is the day in June 2010, Yan Yan Rencai in June 2010, the day, Yan Rencai in the Telecom Company and then to Hu Qingping. In June 2010, Yan Rencai received 60,000 yuan in cash from Hu Qingping near the telecommunications district where he lived; the fifth time was in September 2010, Yan Rencai received 20,000 yuan in cash from Hu Qingping near the telecommunications district where he lived; the sixth time was in early 2011, Yan Rencai received 30,000 yuan in cash from Hu Qingping near the telecommunications district where he lived.
The above evidence is legal, objective and true, can corroborate each other to confirm that the defendant Yan Rencai bribe 200,000 yuan of criminal facts, the court shall be admitted. The defense submitted 1-2 defense evidence to confirm that Yan Rencai has all the return of stolen goods and cell phone calls, the court shall be admitted. But the 3rd defense evidence signed by Zhang Hongjun's written testimony, because the investigating authorities did not retrieve Zhang Hongjun's testimony, Zhang Hongjun also did not testify, the authenticity of the written testimony can not be confirmed, the court will not be admitted.
This court believes that the defendant Yan Rencai, as a state employee, using his position as deputy director of Jintang County Construction Bureau, director, general manager of the construction investment company, chairman of the board of directors, unlawfully accepted 200,000 yuan in cash for the benefit of others, his behavior has constituted the crime of accepting bribes. Chengdu City, Sichuan Province People's Procuratorate prosecution accused Yan Rencai guilty of accepting bribes, the facts are clear, the evidence is true, sufficient, the charge is established, this court supports. Defendant Yan Rencai after the return of truthfully confessed to the crime of accepting bribes, his relatives on behalf of the return of all the stolen money, may be appropriate for the defendant Yan Rencai lighter punishment.
With regard to the defense that Yan Rencai's disbursement of funds for Hu Qingping's project progress was a normal part of his duties, and that there was insufficient evidence to accuse Yan Rencai of taking advantage of his position to gain benefits for other people, this court, after reviewing the case, believes that, first of all, the defendant Yan Rencai served as the deputy director of Jintang County Urban and Rural Construction Bureau, director of the bureau, and the general manager of the Jintang Construction Company, chairman of the board of directors of the company, and was responsible for the relevant construction projects of the Jintang Construction Company. He was responsible for the fund disbursement of the relevant construction projects of Jintang Construction Investment Company, and was responsible for signing and approving the fund disbursement of the "Chau City Garden" project, which was awarded to Jinda Company. Secondly, the defendant Yan Rencai's confession, witness testimony and relevant documentary evidence can confirm that, although the disbursement of project progress payment is Yan Rencai's normal work duties, but the bribe-taker Hu Qingping knew that the progress payment of the subcontracting of the project of the four buildings needed Yan Rencai's approval to be disbursed in a timely manner, and prior to Yan Rencai put forward the request, Yan Rencai also explicitly committed, and according to the progress of the project in a timely manner, signed the disbursement of progress payment of the project contracted by Hu Qingping, and at the same time, signed and disbursed the payment of the progress payment of the project contracted by Hu Qingping. The progress of the construction of the project, at the same time accept Hu Qingping to express gratitude for the cash sent 200,000 yuan, therefore, the defendant Yan Rencai signing and disbursement of the project funds although its normal performance of their duties, but its acceptance of Hu Qingping's request, the commitment and use of its performance of their duties to seek benefits for Hu Qingping, illegally accepting Hu Qingping's payment of property, its behavior violates the integrity of the function of the state staff, in line with the crime of passive bribery. His behavior violated the integrity of state officials' official behavior, and met the elements of the crime of passive bribery, and whether the benefit he sought for the requestor was a normal performance of duty did not affect the establishment of the crime of passive bribery. Therefore, the defense proposed the above defense cannot be established, the court does not accept.
On the defendant Yan Rencai and his defense Yan Rencai has the self-surrender circumstances of the defense. The court believes that the two elements of voluntary surrender and truthful confession of one's own crime are required to constitute surrender. According to the source of the case issued by the investigating authorities, the investigation description and the interrogation transcripts of the bribe giver Hu Qingping and the defendant Yan Rencai, the investigating authorities discovered the case clue of Yan Rencai and others suspected of accepting bribes on March 29, 2011, and the bribe giver Hu Qingping and Yan Rencai truthfully gave an account of the facts of the crimes of bribe-giving and accepting bribes after being notified of the case by the investigating authorities in February 2012; the interrogation (questioning) transcripts provided by the Public Prosecution Office The inquiry (interrogation) transcript provided by the Public Prosecution Office indicates that the bribe giver Hu Qingping gave an account of the fact of giving bribes to Wen Bin and Yan Rencai in the early morning of February 13, 2012, while the transcript provided by the Public Prosecution Office reflects that the earliest account of the fact of receiving bribes by the Defendant Yan Rencai was given on the evening of February 14, 2012, i.e., after the bribe giver Hu Qingping gave an account of the fact of bribe-giving. Therefore, the case-handling authorities in Yan Rencai to explain the facts of bribery before the case has mastered the criminal facts of bribery, Yan Rencai in the case-handling authorities to inform the investigation of its conversation, the criminal facts are the case-handling authorities have mastered the clues against the facts. According to the supreme people's court, the supreme people's procuratorate "on the handling of cases of crimes of self-surrender, merit and other sentencing circumstances of the relevant provisions of the opinion", the behavior can not be identified as self-surrender. Therefore, the defendant Yan Rencai and his defense Yan Rencai have surrendered to the defense and defense can not be established, the court does not accept.
Defendant Yan Rencai and his defense mentioned that Yan Rencai confessed to the crime with a good attitude and surrendered all the stolen money, so he could be given a lighter punishment, which is consistent with the facts found in the trial, and the court adopts it.
Accordingly, in order to safeguard the integrity of the state staff's position and punish corruption, the verdict is as follows:
A. In accordance with the provisions of Article 385(1), 386, 383(1)(a) and 67(3) of the Criminal Law of the People's Republic of China (PRC), the defendant, Mr. Yan Rencai, is guilty of the crime of accepting bribes, and shall be sentenced to 10 years of imprisonment;
(sentence) p>
(The term of imprisonment shall be calculated from the date of execution of the judgment. If the defendant is detained before the execution of the sentence, one day of detention shall be credited as one day of imprisonment, i.e., from February 15, 2012 to February 14, 2022)
The second, in accordance with the provisions of Article 64 of the Criminal Law of the People's Republic of China, the proceeds of accepting bribes of 200,000 yuan of the defendant, Yan Rencai, shall be recovered and surrendered to the State treasury.
If you do not accept this judgment, you may appeal to the Sichuan Higher People's Court through this court or directly within ten days from the second day of receiving the judgment. In the case of a written appeal, one original and two copies of the appeal shall be submitted.
Li Yonghui, Judge
Cheng Zheyuan, Acting Judge
Cheng Gende, People's Juror
November 21, 2012
Shijinfeng, Bookkeeper
Attached are the contents of the relevant provisions of the law applicable to this case:
Article 383, paragraph 1, subparagraph 1: Anyone who commits the crime of embezzlement shall be subject to the following penalties in accordance with the severity of the circumstances. the gravity of the circumstances, shall be punished in accordance with the following provisions:
(1) If the amount of personal embezzlement is 100,000 yuan or more, he shall be sentenced to fixed-term imprisonment of ten years or more or life imprisonment, and may be sentenced to confiscation of property; if the circumstances are particularly serious, he shall be sentenced to the death penalty, and may be sentenced to confiscation of property.
Article 385 (1): A state functionary who takes advantage of the convenience of his position to solicit the property of another person, or illegally accepts the property of another person for the benefit of another person is guilty of the crime of passive bribery.
Article 386: Anyone who commits the crime of passive bribery shall be punished in accordance with the provisions of Article 383 of this Law, depending on the amount of the bribe proceeds and the circumstances. Soliciting a bribe shall be punished more severely.
Article 67 (3): If a criminal suspect truthfully confesses his or her crime even though he or she does not have the circumstances of surrender as stipulated in the previous two paragraphs, the punishment may be mitigated; if he or she avoids the occurrence of a particularly serious consequence due to his or her truthful confession of his or her crime, the punishment may be reduced.
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