The revision of criminal law can always be the focus of attention from all walks of life. The trial law of the National People's Congress, from the retention or abolition of the crime of whoring with young girls to the heavy punishment of violent assaulting police officers, has attracted people's attention. Sentencing standards in corruption and bribery crimes are also a long-term concern of society.
In the ninth draft of the criminal law amendment, the situation of corruption is re-divided: the amount of corruption is no longer listed specifically, but divided into three levels: "large amount", "huge amount" and "extremely huge". However, in the current criminal law, the punishment standards are listed according to four types of corruption: more than 654.38+ 10,000 yuan, more than 50,000 yuan but less than 654.38+ 10,000 yuan, and more than 5,000 yuan but less than 5,000 yuan. In contrast, the irrationality of such a specific amount is obvious.
For example, Ma Chaoqun, the former general manager of Beidaihe Water Supply Company in Qinhuangdao, Hebei Province, found 65.438+0.2 billion yuan in cash at home, far exceeding 65.438+0.00000 yuan, but he can only be sentenced according to more than 65.438+0.00000 yuan. Judging from public reports, it is also very rare for officials to be dealt with for corruption of 5,000 yuan or 50,000 yuan. From this perspective, this provision is obviously out of date and even difficult to strictly enforce. Therefore, it is undoubtedly a realistic move to divide the amount of corruption into three grades: "large amount", "huge amount" and "extremely large amount", although it seems to be relatively principled.
Compared with changing the specific amount, another change is equally important-the sentencing of corruption and bribery crimes is no longer simply linked to the amount of corruption, but also takes into account "other serious circumstances", "other serious circumstances" and "other particularly serious circumstances". A few years ago, Liu, the former procurator-general of Arongqi Procuratorate in Inner Mongolia, was investigated for "borrowing a luxury car". Under the new law, this behavior of borrowing, borrowing things and using luxury cars and luxury houses for free may be more reasonable and effective. The model of "plot amount" is obviously more flexible, which is also conducive to raising the cost of corruption.
However, such regulations will inevitably cause some concerns. Many netizens believe that after the deletion of specific standards, the space for discretion will expand, and links such as filing a case and sentencing will easily breed corruption. Dispelling this concern requires specific judicial interpretation to follow up. In fact, it is a more scientific choice to accurately adjust the specific standards according to different situations through judicial interpretation and even specific judicial practice.
The law is not a "dead" regulation, but a "living" adjustment. Only by constantly talking with economy, society, politics and even public opinion can the law find the best breakthrough point and truly become a tool for adjusting social relations. The standard of "from 5,000 yuan" for corruption and bribery was formed 18 years ago. Think about the price level of 1997, and you will have a more intuitive feeling about this problem. Of course, the law should also have certain stability, which is where the legal authority lies. How to find a good balance between the stability and variability of law is exactly the question that legislators need to answer.
It should be said that after nearly three years of strong promotion, anti-corruption has entered a critical period and deep water area. There are many public opinions at home and abroad, looking at the "where to go" of anti-corruption. At this stage, it is an inevitable choice for anti-corruption to enter the track of institutionalization and rule of law. From this perspective, constantly revising and perfecting the law, with the support of the system and the support of the law, can undoubtedly make anti-corruption go more stable and better.
Extended reading
On September 27th, at the criminal defense summit forum of Dacheng Law Firm, Chen Xingliang, a professor at Peking University Law School, revealed that the Criminal Law Amendment (IX) proposed to establish the crime of accepting gifts.
The Criminal Law Amendment (IX) was drafted from 20 13. The crime of accepting gifts is only one of the new crimes, but it has attracted much attention because of its connection with anti-corruption.
The purpose of establishing the crime of accepting gifts is to make up for the disconnection between the constitutive requirements of accepting bribes and the requirements of anti-corruption. Moreover, the reporters of the 265438+ 20th Century Business Herald learned from many places that the Criminal Law Amendment (IX) will also regulate the sentencing of the crime of accepting bribes, and the sentencing standard of the crime of accepting bribes will no longer be based on the three "embarrassing" figures of 5000 yuan, 50000 yuan and 65438+10,000 yuan.
It is suggested to add the crime of accepting gifts.
On September 28th, Chu, the authority of criminal law and consultant of China Criminal Law Research Association, told the reporter: "The crime of accepting gifts will be a new crime independent of the crime of accepting bribes, not an accessory to the crime of accepting bribes." .
According to the provisions of the current criminal law, the crime of accepting bribes refers to the act of state staff taking advantage of their positions to ask for other people's property, or illegally accepting other people's property to seek benefits for others.
This means that "the defendant constitutes the crime of accepting bribes and must seek benefits for others subjectively and objectively", Chu told 2 1 Century Business Herald, "but there is a kind of disguised bribery in judicial practice, that is, officials are slowly bought off, but they cannot prove that they are making profits for others".
"This is why some corrupt elements have a huge amount of corruption, and when they finally enter the judicial process, the amount of bribes is only tens of millions or millions. There is no causal relationship between a lot of corruption and taking advantage of one's position to benefit others, "said a person close to the legislature. In addition, the lack of causality will also cause dissatisfaction among some defendants.
Many criminal law scholars have confirmed that the crime of accepting gifts has been written into the draft amendment to the Criminal Law (IX). "State employees can be convicted as long as they receive a certain amount of gifts, even if they can't prove that they are making profits for others," Chu Hu Aizhi said.
"Of course, the penalty for accepting gifts is also lighter than that for accepting bribes," he said.
In the eyes of the above-mentioned people close to the legislature, the addition of the crime of accepting gifts is a problem of coordination between China's criminal law and the United Nations Convention against Corruption.
China has acceded to the United Nations Convention against Corruption. However, according to the provisions of the Convention, as long as the act of soliciting or accepting illegitimate interests is related to his duty behavior, it is enough to constitute the crime of accepting bribes, and does not include the element of "seeking benefits for others".
Calling for the crime of accepting gifts first appeared in 1997. Zhou Zhenxiao, a criminal scholar, wrote an article in the Journal of Hangzhou University, suggesting that the crime of illegally accepting gifts should be added to the criminal law.
Some criminal law scholars also expressed different opinions. On September 28th, at the annual meeting of China Criminal Law Research Association, a number of criminal law scholars said that there is no need to establish the crime of accepting bribes, and "it is only necessary to reconstruct the constituent elements of the existing crime of accepting bribes".
In August this year, Liu Renwen, director of the Criminal Law Office of the Institute of Law of the Chinese Academy of Social Sciences, said that "seeking benefits for others" in the crime of accepting bribes can be modified, but it should not be completely abolished, otherwise some normal human relations may also become criminal acts.
Is the sentencing of bribery no longer "only digital"?
The provisions on anti-corruption in the ninth draft of the Criminal Law Amendment also include the reconstruction of sentencing standards for accepting bribes.
In the current criminal law, referring to the crime of corruption, the sentencing standards for accepting bribes are divided into four standards: those who accept bribes of more than 654.38+ 10,000 yuan are sentenced to fixed-term imprisonment of more than 654.38+00 years or life imprisonment, and if the circumstances are particularly serious, they are sentenced to death; Those who accept bribes of more than 50,000 yuan but less than 654.38+10,000 yuan shall be sentenced to fixed-term imprisonment of more than 5 years, and if the circumstances are particularly serious, they shall be sentenced to life imprisonment; Whoever accepts bribes of more than 5,000 yuan but less than 50,000 yuan shall be sentenced to fixed-term imprisonment of 1 year and less than 7 years; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 7 years 10 years; Whoever accepts bribes less than 5,000 yuan shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. If the circumstances are minor, only administrative sanctions shall be given.
In reality, this leads to the inconsistency of sentencing standards. Zhang said, former deputy director of the Research Office of the Supreme Court and a professor at the National Judges College: "For example, accepting bribes of 80,000 yuan is sentenced to eight years, and accepting bribes of 800,000 yuan may only be sentenced to 1 1 year."
"Therefore, when drafting the Ninth Amendment to the Criminal Law, I hope to abolish the specific sentencing standards for bribery crimes like theft," Zhang told 2 1 Century Business Herald.
Chu Hu Aizhi told reporters that when the Ninth Amendment to the Criminal Law was drafted, some people said that the specific numerical standards of 5,000 yuan, 50,000 yuan and100,000 yuan in sentencing for accepting bribes were cancelled, and only vague concepts such as "large amount", "huge amount" and "extremely huge" were used. "The specific digital standard is determined by judicial interpretation," he said.
"This idea was put forward when drafting the Eighth Amendment to the Criminal Law, but it was cancelled one month before the draft was submitted to the National People's Congress Standing Committee (NPCSC) for deliberation," Chu Hu Aizhi said.
"In judicial practice, many people have raised questions. Some people think that the starting point of the crime of accepting bribes of 5,000 yuan was put forward by 1997, and it should be greatly improved now, at least by 10 times. " On September 28th, at the annual meeting of China Criminal Law Research Association, Professor Ou of Guangxi Cadre College of Political Science and Law said.
There is also a view that the starting point of punishment should be lowered, because "the social harm of corruption and bribery crimes should be greater than theft, and the starting point of theft is 1000 yuan to 3000 yuan." He introduced, "There is a third view that there should be' zero tolerance' for bribery, so there is no starting point for sentencing."
Ou's point of view is to take the minimum wage multiple as the sentencing standard for accepting bribes. "Because the minimum wage is the disposable income of the most vulnerable workers, it can best reflect the pain of the victims of bribery."
The further clarification of the sentencing standard of bribery crime is a part of promoting the standardization system of sentencing. After years of trial, in 20 10, the Supreme Court issued the Guiding Opinions on Sentencing of People's Courts (Trial), which standardized the specific sentencing standards for 15 crimes.
A person familiar with the matter said that the 15 charges covered 75% of all criminal cases in China, but did not include the crime of accepting bribes. The above-mentioned insiders said that the relevant departments have planned to expand the number of crimes in the sentencing guidance to about 30.
Another defect of sentencing of bribery crime is that there is no control penalty and fine penalty, which leads to the extensive use of probation in bribery crime, which leads to serious light punishment, and doubts the excessive crackdown of bribery criminals.