What are the rules for the crime of bribery in affiliated units?

Generally, a unit will be fined for committing crimes. So what is the content of the crime of bribery in affiliated units? Bribery of affiliated units is also a crime of bribery, and the perpetrator should be criminally punished according to relevant regulations, and the affiliated behavior should be punished according to the standard of personal bribery. 1. The crime of bribery of affiliated units meets the constitutive requirements of bribery and should be recognized as bribery. Article 393 of China's criminal law stipulates that a unit pays bribes for illegitimate interests, or gives kickbacks or handling fees to state staff in violation of state regulations. If the circumstances are serious, the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention. If the illegal gains from bribery are owned by individuals, they shall be convicted and punished in accordance with the provisions of Articles 389 and 390 of this Law. In business activities, there are a lot of related business phenomena. This is especially true in some franchise industries. It should be considered as bribery. According to the provisions of the first paragraph of Article 390 of the Criminal Law of People's Republic of China (PRC), the first paragraph and the third paragraph of Article 72, the second paragraph and the third paragraph of Article 73, the first paragraph of Article 7 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, and the first paragraph of Article 195 of the Criminal Procedure Law of People's Republic of China (PRC), the judgment was made. Defendant Zhong Moumou was convicted of accepting bribes, sentenced to two years in prison, suspended for three years, and fined 100000 yuan. How to identify the crime of bribery in a unit refers to the serious behavior that the unit gives money and property to state staff in order to seek illegitimate interests or violate state regulations, and gives them kickbacks and handling fees in various names in economic exchanges. The subject of unit bribery crime is the unit, which generally includes state-owned and collective-owned companies, enterprises and institutions, organs, organizations and other enterprises and institutions with legal personality established according to law. However, with the development of China's legal economy, some new economic subjects have appeared in judicial practice. How to characterize their bribery behavior? Whether it is a unit crime or an individual crime requires us to give it a clear definition. When determining the crime of accepting bribes in a unit, the key point is to determine whether the subject of the crime has the identity of the subject of the unit, whether it embodies the will of the unit and whether it seeks benefits for the unit. If it is, it constitutes a crime of bribery by the unit, otherwise it constitutes a crime of bribery. The following is a further analysis of the qualitative problem of bribery in several special units. (1) Can a one-person company become the subject of the unit bribery crime? One-man company refers to a limited company (including limited liability company and joint stock limited company) with only one shareholder (natural person or legal person) holding all the capital contribution of the company. The current company law recognizes a one-person limited liability company. Although there is only one shareholder in this company model, the shareholders are limited to the amount of capital contribution. Shareholders and companies are independent individuals in law, and a one-person limited liability company is an independent legal person with independent will. This is also in line with the spirit of the Supreme People's Court's judicial interpretation. 1 Article/kloc-0 of the Interpretation of the Supreme People's Court on Relevant Issues Concerning the Specific Application of Law in the Trial of Unit Crimes on June 25, 999 stipulates that "companies, enterprises and institutions" as stipulated in Article 30 of the Criminal Law include both state-owned and collectively-owned companies, enterprises and institutions, as well as joint ventures, cooperative enterprises, sole proprietorships and institutions established according to law with legal personality. As a one-person limited liability company has the legal person qualification, it certainly belongs to the "company" in Article 30 of the Criminal Law. [1] One-person limited liability company enjoys the rights and obligations that the company should bear, and meets the subject qualification of unit crime, so it meets the subject qualification of unit bribery crime. (2) Can private enterprises become the subject of unit bribery crime? Private enterprises are enterprises invested by individuals, usually referring to sole proprietorships and partnerships. A wholly-owned enterprise refers to a business entity established in China according to law, which is invested by a natural person and its property is owned by the investor, and the investor assumes unlimited liability for the debts of the enterprise with his personal property. A wholly-owned enterprise usually does not have a sound organizational structure and the basic conditions for corporate legal personality. A partnership enterprise refers to a profit-making organization established in China according to law, in which all partners enter into a partnership agreement, * * * jointly contribute capital, operate in partnership, * * * enjoy benefits, * * * bear risks, and bear unlimited joint and several liabilities for the debts of the partnership enterprise. The remarkable feature of a partnership is that its business activities are decided by the partners. It is not difficult to see that individual partnership is a combination of people and a fusion of non-assets. Its capacity for rights and conduct is not completely divorced from the members of the partnership and does not have independent will, so it is not an independent enterprise legal person. Because these two kinds of enterprises do not have the qualifications of legal persons and have no criminal responsibility at all. If these two enterprises are investigated for criminal responsibility, it is actually a second punishment for a natural person's criminal behavior, which violates the principle of suiting crime to punishment. Therefore, these two types of enterprises are not enterprises referred to in Article 30 of the current Criminal Law. [2] According to Article 393 of the Criminal Law, if the illegal gains obtained by bribery belong to individuals, they shall be punished as personal bribery. In order to seek illegitimate interests, private entrepreneurs pay bribes to state employees, although it is carried out in the name of the unit, but because the illegitimate interests are mainly owned by their individuals, this behavior should be characterized as individual crimes, not unit crimes. (3) Whether the branch or internal organization of a unit can become the subject of the crime of accepting bribes, or whether the branch or internal organization of a unit can become the subject of the crime of accepting bribes, some scholars in the theoretical circle believe that according to the criminal law, the subject of unit crime can only be companies, enterprises, institutions, organs and groups, and there is no specific provision for its branches and internal components, so the subordinate institutions of those units cannot constitute unit crimes alone. [3] The general theory of criminal law holds that companies, organs, institutions and their branches and internal functional departments can become the main body of unit crime, [4] and judicial practice generally agrees with this view. 200 1, 1, 2 1 the Supreme People's Court's "Minutes of the National Symposium on the Trial of Financial Crimes" stipulates: "When a branch or internal institution or department handles a criminal act committed by its own unit, it commits the crime in the name of its branch, internal institution or department, and the illegal income also belongs to the branch, internal institution or department. It cannot be considered as a unit crime because the branch or internal organization or department of the unit has no property for executing the fine, but it is treated as an individual crime. " This provision affirms that the branch or internal organization of a unit can become the subject of unit crime, that is, it can become the subject of unit bribery crime. (four) whether the subject of personal affiliation and risk orientation can become the subject of unit bribery crime; The business model of individuals affiliated with the main body is that individuals who have no legal business entities are affiliated with the units with the right to operate and engage in profit-making activities in the name of the units. The business model of the subject of personal risk management is: the staff in the unit engage in profit-making activities in the name of the unit, and the individual operates independently and is responsible for its own profits and losses. In order to seek illegitimate interests and violate state regulations, the above two units pay bribes or give kickbacks or handling fees to state staff. On the surface, although it is in the name of the collective, it is actually an individual investment. In addition to paying a certain management fee to the affiliated unit, its operating income is all owned by individuals. "Just because the briber pays a certain fee to the unit for personal benefit, it is obviously inappropriate to understand this fee as' the benefit created for the unit' and judge that its behavior is the unit behavior." [5] the behavior in the name of the unit is essentially a personal behavior. In fact, individuals borrow the name of the unit, pay bribes for their own illegitimate interests, or borrow the name of the unit, in violation of state regulations, and give the unit or their own property to state staff in the form of kickbacks or handling fees. If the amount is relatively large, it shall be regarded as bribery. Article 393 of the Criminal Law stipulates that if the illegal gains obtained by taking bribes are owned by individuals, they shall be convicted and punished according to the provisions of Articles 389 and 390 of this Law, that is, convicted and punished according to the crime of bribery. This provision has made it clear that no matter whether the perpetrator pays bribes in the name of a unit or an individual, as long as the illegal income from bribery belongs to individuals, it should be punished as personal bribery. (5) Whether the contracting enterprise can become the subject of the unit bribery crime refers to the subject that the actor obtains the management right of the enterprise by signing a contract and engages in business activities in the name of the enterprise. Whether contracting enterprises can become the subject of unit bribery crime cannot be generalized, but should be determined according to specific circumstances. According to whether the contractor invests assets in the contractor, the contractor can be divided into two types. One is that the contractor has invested assets. Because the contracting enterprise is the performance of the separation of the ownership and management rights of the contractor's assets and the result of the contractor's independent choice of management mode, it does not change its asset attributes and unit nature because of the adoption of contracting mode. Therefore, the bribery of such individual contracting enterprises constitutes a unit crime and should be punished as a unit bribery crime. The second is that the contractor has no asset investment. Its actual performance is that the working capital of the enterprise is actually invested by the contractor, and the contractor only provides the business license, and then charges a fixed contract fee according to the contract. The profits obtained by enterprises in the course of operation are mainly earned by contractors. Therefore, although the contractor of the contracting enterprise pays bribes in the name of the unit, the illegitimate interests of bribery are mainly obtained by the contractor and should be punished as personal bribery. What is the content of bribery in affiliated units? Bribery and bribery occur at the same time. If there is a bribe, there must be a bribe, but it contains the problem of attempted. The punishment for bribery is generally based on the amount of bribery. The more bribes, the heavier the punishment.