It is very important to distinguish the nature of the intertwined behavior of gift-giving and bribe-taking, because this is a qualitative issue often encountered in suspected bribery cases. Is it possible to have a friendship and a working relationship at the same time?
Because we have a basic normative requirement for state workers (especially those working in state agencies), that is, state workers should avoid property transactions with parties with whom they have a working relationship due to their duties. . This is the basic principle for making friends with them and should become a norm. This is a requirement for the construction of a clean government in the country. As long as there is a working relationship, accepting property is not allowed in principle. If the amount reaches the legal limit, you can be convicted. At the same time, if you meet the conditions of "seeking benefits for others", you are accepting bribes. Those that may influence official activities but are not handed over to the public can be classified as corruption.
It is necessary to establish a principle. The establishment of this principle is only beneficial to state workers and is also crucial to maintaining the integrity of state official activities. "Fuzzy" standards cannot be used. My point of view is that when we study issues, we should try to provide relatively stable and certain standards for the judiciary, rather than vague and difficult-to-understand standards. The amount standards mentioned in our textbooks were too vague and lacked operability, causing a lot of specious troubles. Once this kind of trouble is created, it can never be dealt with. This is because friendship is not only eternal, but also "priceless." In such cases there is an element of friendship as well as an element of obligation, both intertwined. So I advocate for stricter standards. This is a tight legal net and strict criminal policies and standards. The ambiguity and inaccuracy of laws and policies also provide room for interference from non-legal factors such as greetings and opening back doors. Because there is flexible space, you can go up or down, and the leader can speak out. If judicial personnel do not listen, it is a matter of attitude towards the leadership and even the party organization. So, our key now is to see if there is a working relationship. With this relationship, state workers should not accept property from others, thus providing a clearer standard. There is no room for the intervention of non-legal factors, and it also protects our judicial personnel, allowing them to be less disturbed and make fewer mistakes, because with clear standards, there is no more flexibility.
Finally in 1989, the Supreme People's Court and the Supreme People's Procuratorate jointly issued an "Answer" on the implementation of the National People's Congress Standing Committee's "Supplementary Provisions on Punishing the Crime of Corruption and Bribery", stipulating that state workers simply use relatives and friends to accept property Yes, it does not fall into the crime of accepting bribes. Among them, the qualifier "simple" is particularly important. I understand "simple" to mean pure, that is, purely related to relatives and friends, and you can accept unlimited bribes. So according to the natural explanation, impurity can also be interpreted as having a work relationship, which cannot be ruled out and should be convicted. This understanding is more rigorous, and it should be.
* * * *Second, the boundaries between disciplinary violations, illegality and crime in accepting gifts. *******
In the party's disciplinary documents issued by the Central Committee of the Communist Party of China, there was a provision that those who accept gifts and cash gifts worth more than 200 yuan must hand them over, otherwise they will be punished as a disciplinary violation . Those with less than 200 yuan can be retained without disciplinary action. Last year, the Shanghai Municipal Commission for Discipline Inspection stipulated that all gifts received by state officials, regardless of the amount, must be turned over. Failure to hand it in will be deemed a disciplinary violation and will be dealt with accordingly. However, in practice, the operability of this provision remains an issue. I don’t know how many cadres among party members have been punished for accepting gifts, especially small gifts or gifts under 200 yuan. Our thinking is still a bit overjoyed. In fact, we still need to grasp the main problems and the main aspects of the contradictions.
The issue of gifts first appeared in criminal legal norms in 1988. 1988 65438 On October 21, the Standing Committee of the National People's Congress passed a decision on supplementary regulations on punishing corruption and bribery crimes. It has been stipulated that when state employees accept gifts in foreign exchanges, they should hand them over to the public instead of handing them over in accordance with national regulations. If the amount is relatively large, it will be punished as corruption. However, the criminal investigation at that time was limited to the foreign exchange activities of state personnel.
The meaning of this "external communication" is basically understood in actual judicial practice. "External" generally does not refer to outside the person or department, but mainly refers to overseas and overseas contacts in the person's work activities. In my opinion, this setting was reasonable at the time, because foreign exchanges often have certain diplomatic characteristics. On the occasion of foreign affairs activities, it is polite to exchange gifts, and it is difficult to refuse such gifts. In other words, it is based on the rationality, legality and non-punishability of receiving gifts as its basic premise. State staff actually receive gifts on behalf of the state and agencies, but the property rights of the gifts received belong to the state and are the property of the state. Therefore, according to the regulations of the state, it should be handed over but not handed over, of course, because this is tantamount to taking advantage of one's position to embezzle state property. However, after the promulgation of this legal provision, there was no judgment in our country's judicial practice for a considerable period of time, because our country's judicial personnel seem to pay more attention to typical cases of corruption and bribery, but ignore cases of gift giving, and have no awareness of this aspect. Of course, since those with the authority to communicate with the outside world are senior officials, it is naturally difficult for high-level officials to investigate and deal with them. Therefore, in the minds of ordinary people and officials, there is no such concept as "failure to hand over gifts will be treated as corruption", and many people (including many judicial workers) do not have such a concept either.
In 1997 we revised the criminal law. Article 394 of the current Criminal Law stipulates that in addition to accepting gifts from state functionaries in foreign exchanges, it also stipulates that state functionaries who accept gifts in domestic official activities should replace bribery with bribery. If the amount is larger, they should also be convicted of corruption. . I think it is right for us to stipulate that gifts must be handed over to the public, but the line of defense must be set up in the front, that is, during the acceptance process. In principle, state employees are not allowed to accept gifts and cash gifts during official activities. You should refuse to accept anything other than an official courtesy gift. Now our bottom line has retreated to the back. It seems we can accept it. Take it and hand it over. Such system design is instructive and will undermine the code of conduct of state workers and bring consequences that undermine the credibility of state official activities.
As far as the application of specific provisions is concerned, how to define "domestic official activities" is a problem. If this provision of the criminal law is interpreted from the perspective of a strict legal network, it can be defined in our country as official activities based on official duties, and it is difficult to identify certain bribery behaviors (for example, it does not meet the requirements of "seeking benefits for others"). So is there a time limit for "not paying public taxes"? We often pay little attention to this, which should be based on relevant "national regulations" violated by state staff. In 1988, the State Council issued the "Gift Registration Regulations for National Administrative Agencies and Their Staff", which stated that anyone who did not hand over gifts within one month would be punished as a crime of corruption. This is an earlier administrative norm. The "January" rule here has at least two functions: first, it gives state workers a time for ideological struggle to reflect rationality; second, it is the presumption of illegal possession. In other words, after more than one month, in principle, the purpose of illegal possession of gifts and gifts for corruption is established. Of course, I think it can be an exception if the defendant can give a reasonable explanation to rebut the presumption.