What is the crime of accepting bribes? The crime of accepting bribes refers to the act of state functionaries taking advantage of their positions to ask for other people's property, or illegally accepting other people's property to seek benefits for others. "Taking advantage of one's position" refers to taking advantage of the power within one's position, that is, the power to take charge of, be responsible for or undertake a public affair and the convenient conditions for its formation. Those who ask for other people's property, whether or not they "seek benefits for others", are all ...
Definition and determination of criminal charges
Definition of bribery crime
2. Definition and identification of bribery crime
Under any of the following circumstances, a person suspected of accepting bribes shall be placed on file: 1, 2. The amount of personal bribes is more than 5,000 yuan, 2. The amount of personal bribes is less than 5,000 yuan, but under any of the following circumstances: (1) The interests of the state or society have suffered great losses due to bribery; (two) deliberately making things difficult for the relevant units and individuals, causing adverse effects; (3) Forcibly demanding property.
Sentencing standard
3. Sentencing of bribery crime
According to the provisions of this article and Article 383, those who commit the crime of accepting bribes shall bear criminal responsibility in accordance with the following provisions: the sentencing of the crime of accepting bribes is basically the same as that of the crime of corruption. Taking the amount and circumstances of accepting bribes as the standard, the punishment for the perpetrator is specifically determined. 1. An individual who accepts bribes of more than 654.38+10,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 or life imprisonment. If the circumstances are particularly serious, he may also be sentenced to death and his property confiscated. 2、……
4. Elements of crime
Subject of accepting bribes
The subject of the crime of accepting bribes is a special subject, that is, state functionaries. According to the provisions of Article 93 of this Law, state functionaries include state functionaries ex officio, that is, those engaged in public service in state organs, that is, those engaged in public service in state-owned companies, enterprises and institutions and those engaged in public service in non-state-owned companies, enterprises, institutions and social groups appointed by state organs, enterprises and institutions.
Subjective aspects of the crime of accepting bribes The crime of accepting bribes is subjectively constituted by intention, only when the perpetrator intentionally commits the crime of accepting bribes can it constitute the crime of accepting bribes, and negligent behavior does not constitute the crime of accepting bribes. If a state functionary seeks benefits for others and does not take bribes intentionally, the latter will send the property to his home in the name of reward, while the former is unaware of it and cannot be punished as accepting bribes. In practice, criminals often use various ingenious methods to cover up their real criminal purpose, so
The object of accepting bribes The object of accepting bribes is a complex object. Among them, the secondary object is the integrity of the duty behavior of state staff, and the main object is the normal management activities of state organs, state-owned companies, enterprises and institutions, and people's organizations. The object of bribery crime is property. However, it should not be narrowly understood as cash and specific items, but whether it contains property or other interests. This benefit can be realized immediately or in the future. ...
Objective aspects of bribery crime
The objective aspect of the crime of accepting bribes The objective aspect of the crime of accepting bribes is that the actor takes advantage of his position to ask for other people's property, or accepts other people's property to seek benefits for others. Taking advantage of one's position is an important objective component of the crime of accepting bribes, which can be divided into the following two situations: (1) Taking advantage of one's position. Authority refers to the qualification of state organs and their public officials to carry out certain acts according to law, namely ...
5. Does the crime of accepting bribes constitute the boundary of the crime of accepting bribes?
Whether the crime of accepting bribes constitutes the boundary of accepting bribes in judicial practice (the boundary between crime and non-crime) should pay attention to the following points: the difference between accepting bribes and accepting bribes. Bribery is an act of taking advantage of one's position. It is often a gift expressed in an abnormal way, not taking advantage of one's position. It is expressed in a normal and reciprocal way. ...
6, the difference between this crime and that crime
The difference between bribery crime and bribery crime of company and enterprise personnel
The difference between the crime of accepting bribes and the crime of accepting bribes by company and enterprise personnel has something in common with the crime of accepting bribes by company and enterprise personnel in objective behavior, criminal object and subjectivity. But there are also the following differences between them: 1, and the subject of crime is different. The crime of accepting bribes by company and enterprise personnel is a new type of crime separated from the general crime of accepting bribes, and it has its own unique crime constitution standard. The subject scope of bribery crime refers to: (1) company staff (2) company …
The difference between bribery crime and corruption crime
The difference between the crime of accepting bribes and the crime of corruption lies in that the subject of the crime of accepting bribes is all state functionaries, which is direct and intentional subjectively and takes advantage of his position objectively. But there are the following differences between them: 1, and the infringing objects are different. The direct object of bribery crime is the normal activities of state organs, and the direct object of corruption crime is the ownership of public property. 2, the object of infringement is different, the object of bribery is the public. ...
The difference between accepting bribes and extortion
The difference between the crime of accepting bribes and the crime of extortion refers to the act of forcibly demanding public and private property for the purpose of illegal possession and by means of threats and extortion. The crime of accepting bribes and the crime of extortion are both intentional subjectively, and sometimes the main body is national staff. Objectively, the crime of extortion and the crime of accepting bribes have similar means of obtaining property, and sometimes it is difficult to distinguish the boundaries between them. These two kinds of crimes are different not only in the object of crime, but also in the criminal behavior.
The difference between bribery and fraud
The difference between the crime of accepting bribes and the crime of fraud is characterized by illegal possession of public and private property, but there are also the following differences: 1, and the subject of the crime is different. The former is a special topic and the latter is a general theory. 2. The targets of crimes are different. The former is a complex object, in which the main object is the normal management activities of state organs; The latter is the ownership of public and private property. 3. Different objective behaviors. The former is that the actor uses his position to make a request to him. ...
The difference between accepting bribes and bending the law
The difference between accepting bribes and bending the law for selfish ends. But there are also the following differences between them: 1, and the scope of the subject of crime is different. The former is a national staff member, and the latter is a judicial staff member among national staff members. 2. Different objects. The former undermines the country's normal management order and clean government system, while the latter infringes on the country's judicial system. 3. The purpose of favoritism is different. (1) Determination of bribery cases of retired national staff.
Article 388 of the law stipulates that any state functionary who, by taking advantage of his authority or position, seeks illegitimate interests for the trustee through the behavior of other state functionaries and asks for or accepts the trustee's property shall be punished as accepting bribes. Therefore, this provision contains the content that retired national staff can become the subject of bribery crime. The reasons are as follows: first, the formation of status is usually the result of authority, and the two are interdependent; Second, the formation of status is often directly proportional to the length of the authority of the actor; Third, generally speaking, the loss of status does not directly affect the disappearance of the actor's status convenience. Therefore, when the national staff leaves (retires), although their functions and powers are lost, the status convenience formed by their original functions and powers will not disappear immediately. This provides possible conditions for such people to become the subject of bribery crime.
When dealing with such cases in judicial practice, we should strictly grasp and pay attention to the following issues:
1, a divorced or retired state functionary who, by taking advantage of his original authority or position, seeks benefits for the trustee through the on-the-job behavior of the state functionary, demands or illegally demands or illegally accepts property from the trustee can only be punished as accepting bribes. Therefore, the national staff who have left (retired) must meet the following conditions to constitute the crime of accepting bribes:
(1) took advantage of my original authority or position.
(2) This convenience must be specifically completed by on-the-job national staff. This convenience and the convenience of on-the-job national staff are mutually inclusive and interdependent.
(3) Seek benefits for the trustee. Whether the interests are legal or illegal, and whether the interests are really obtained, does not affect the establishment of the crime of accepting bribes.
(4) I ask for or illegally accept property from the trustee. Among them, the value or use value of asking for or illegally accepting property must reach the starting point of 5 thousand yuan. Whether the property I asked for or illegally received from it really belongs to me does not affect the establishment of the crime of accepting bribes.
2. Seek benefits for the trustee. If the actor did not violate his original post, it is not appropriate to investigate the responsibility of accepting bribes of retirees for whatever reason; If seeking benefits for the trustee is an act that the actor violates the original position, then retirees should be investigated for accepting bribes for whatever reason.
3. The bribe given by the trustee to the actor shall be the property agreed by the retiree. If there is a difference, it does not affect the establishment of the crime of accepting bribes after the actor accepts it, or the trustee fails to pay bribes to the actor within the agreed time limit.
4. If the actor seeks benefits for the trustee during his tenure, but does not ask or agree to pay bribes to the trustee, the trustee gives property out of gratitude after leaving (retiring), and the employee who leaves (retiring) generally does not constitute the crime of accepting bribes. However, if the actor violates his original position to seek benefits for the trustee, and he knows that the trustee will give a lot of property because of it, which is not affected by the actor's divorce and retirement, it constitutes the crime of accepting bribes.
5. For retirees who are re-employed and engaged in official duties according to law, they should be punished as bribery.
6. Whoever accepts bribes during his employment and seeks benefits for the trustee after leaving office, or seeks benefits for the trustee during his employment and asks for or accepts property after leaving office, shall be punished as bribery.
(two) the determination of the conditions for accepting bribes before the national staff takes office.
According to the provisions of Articles 16i3, 386 and 388 of this Law, the subject of accepting bribes must be state functionaries. Therefore, before the national staff can obtain the status of national staff or obtain the existing authority, they must strictly grasp the bribery behavior of national staff. Specifically:
1, we must strictly grasp the boundaries before and after taking office. In other words, it should be distinguished by the date when the actor was employed, entrusted or appointed. That is, the behavior of accepting bribes before the date of appointment, entrustment or appointment belongs to the behavior of accepting bribes before taking office; Bribery after the date of employment, entrustment or appointment (including that day) belongs to bribery after taking office.
2. Whether to investigate bribery before taking office according to law should be strictly grasped and treated differently. The key is to see whether the crime of bribery is intrinsically related to the position of the perpetrator. If it exists, it should be recognized as a crime of accepting bribes; If it does not exist, it should not be punished for accepting bribes. Specifically:
(1) If there is a promise between the actor and the trustee, but the actor fails to fulfill his prior promise after accepting bribes, it does not constitute the crime of accepting bribes, but it can constitute the crime of extortion or fraud; However, if the actor fulfills his promise before taking office after taking bribes, that is, asking the trustee to seek the interests he wants, he should be punished as accepting bribes.
(2) There is a promise between the actor and the trustee, but when the actor does not seek the interests he wants for the trustee according to the content of the promise before taking office, but seeks other interests for the trustee, it does not affect the establishment of the actor's crime of accepting bribes.
(3) The promise between the actor and the trustee shall be fulfilled voluntarily after taking office. However, if it is impossible to seek benefits for the trustee due to objective reasons, it will not affect the establishment of the perpetrator's crime of accepting bribes.
(3) Identification of bribery cases of relatives of state staff.
According to Articles 163, 386 and 388 of the Criminal Law, the subject of bribery can only be state functionaries. However, under special circumstances, the relatives of state functionaries can become * * * criminals of the crime of accepting bribes, regardless of whether the relatives themselves have the status of state functionaries. How to identify the crime of accepting bribes? Generally speaking, the objective behavior of accepting bribes includes three types: asking for bribes, illegal bribery and economic bribery. Specific forms include the following eight situations:
(1) Acceptance or refusal refers to the behavior that criminals make promises, provide convenience or refuse to others without making any demands before accepting property. This method is either based on the consideration of the relationship between the briber and the other party, or based on people's common sense, or it may be intentional to hide people's eyes and ears to avoid asking for and intentional suspicion.
(2) inspiration. This is a way of expressing meaning through indirect and implied ways, and it is also different from direct and express requests. It shows considerable handling skills in language, attitude and behavior, which has the effect of making the other party understand, tacitly and without any possibility of capturing legal evidence.
(3) fishing. The briber doesn't have to reveal the true meaning of his request, nor does he handle it skillfully through instigation. He never gives up his commitment, but it is difficult to make a statement to the other party, or he delays blindly, and controls the delay to a degree that makes the other party blameless but enough to make the other party vaguely feel his intention.
(4) Collusion and bribery. Different from the previous situation, this kind of behavior is deliberately promoted by both parties against each other's property and does not belong to either party. They either use secondary reporting, forgery, underreporting (or vice versa), and raise the project cost. Or use the signboard of carrying out normal work and exercising legal power to cover up the dirty power and money transactions behind it. After this kind of behavior, candidates with the lowest scores can be admitted unexpectedly, and criminals with a prescribed sentence of 3 to 5 years are also expected to be executed with the minimum sentence.
(5) accomplished. In this case, the briber didn't express any intention, even didn't want to ask for a bribe in advance, and didn't know that the other party had offered a bribe. Afterwards, I learned that I was greedy for money, did not object, or accepted it politely, or became a full member, which constituted the de facto crime of accepting bribes.
(6) Bribery Bureau. Criminals create a situation or scene, and then rely on reasonable natural forces to complete the bribe. For example, by creating a competitive or stressful atmosphere, they force those who want to be promoted or transferred, those who need shelter to alleviate their guilt, engineering contractors, contract contractors, and subordinates who have other purposes or receive work inspection and guidance to take the initiative and actively pay bribes. Or through festivals, big events, small feelings, weddings and funerals, or even sick in hospital or playing mahjong and other entertainment scenes to collect money and accept bribes.
(7) stealth. Bribery takes advantage of unhealthy social atmosphere and people's distorted psychology of keeping up with the joneses. I won't stand up. Instead, it shows a clean and honest style. In fact, I separate the two acts of taking advantage of my position and illegally accepting property in time and space, and the follow-up part is completed by my family or a third party, which echoes each other and cooperates tacitly. Similar behaviors include that some leading cadres take hereditary bribery to seek benefits for their children's relatives, and arrange these people to do business or engage in a certain power occupation in order to achieve a broader and longer-term purpose. As for the behaviors of state organs, organizations, enterprises, institutions and collective economic organizations mentioned in 1985 "Answers to Several Issues Concerning the Specific Application of Laws in Handling Economic Cases at Present (Trial)", the executives and directly responsible personnel of the units take the opportunity to enrich themselves, which also belongs to this category.
(8) purchase. In order to evade the law, both sides of bribery crime take the legal form of spending money on shopping and buying stocks or bonds, but the actual amount paid is far less than the value of the goods themselves, and the stocks or bonds purchased are purely quasi-insider trading. In addition, it also includes the behavior of buying tight products at internal prices and paying children to enter key schools according to the minimum standards.
As a criminal defense lawyer, what are the defense skills for accepting bribes? Article 385 of China's criminal law stipulates that "it is a crime of accepting bribes for a state functionary to take advantage of his position to ask for other people's property, or to illegally accept other people's property and seek benefits for others". The key problems of crime constitution are: first, national staff; The second is to take advantage of his position; The third is to ask for other people's property; The fourth is to accept the property of others and seek benefits for others. Defense lawyers should make preparations around these four aspects in the entity of the case and analyze whether the suspect constitutes the crime of accepting bribes.
First, the scope of national staff. According to the provisions of the criminal law and the corresponding judicial interpretation, there are mainly the following categories of people who may constitute the crime of accepting bribes: first, people engaged in official duties in state power organs, administrative organs, judicial organs and military organs; The second category is the personnel engaged in public affairs in organizations that exercise state administrative functions and powers in accordance with laws and regulations; The third category is the personnel engaged in public affairs in organizations entrusted by state organs to exercise their functions and powers on behalf of the state; The fourth category is those who are not included in the establishment of state organs, but are engaged in official duties in state organs; The fifth category is the personnel engaged in public affairs in the organs of the Communist Party of China (CPC) and China People's Political Consultative Conference at or above the township level; The six categories are those who are engaged in official business in state organs, state-owned companies, enterprises and institutions; The seventh category is the personnel assigned by state organs, state-owned companies, enterprises and institutions to non-state-owned companies, enterprises and institutions and social organizations to engage in official duties; Eight categories are people's congress deputies, people's jurors, villagers' committees, residents' committees and grass-roots organizations that assist township administrative affairs, etc. who are engaged in public affairs according to law.
Defense skills: defense lawyers mainly pay attention to whether the suspect belongs to one of the above-mentioned personnel and whether he is engaged in official duties. Engaging in official business means that on behalf of state organs, state-owned companies, enterprises, institutions and people's organizations, they only engage in labor activities and technical services and perform duties such as organization, leadership, supervision and management without authority.
Second, use his position. There are mainly the following situations: first, it refers to the use of power within the scope of duties, that is, the authority to take charge of, be responsible for or undertake a public affairs and the convenient conditions for its formation; The second is to take advantage of the authority of other national staff who have subordinate and restrictive relations in their positions; The third category is the national staff who hold leadership positions in their own units and seek benefits for others through the positions of national staff who do not belong to their subordinate departments; The fourth category is the convenience formed by taking advantage of his position, which mainly means that although there is no subordinate or restrictive relationship between the criminal suspect and the national staff he uses, the criminal suspect has a certain working relationship by taking advantage of his own authority or position.
Defense skills: this question is the core element of whether the crime of accepting bribes constitutes, and defense lawyers must make great efforts to make a fuss here. In many cases of suspected bribery, it is not easy to determine whether the suspect takes advantage of his position, and the public prosecution agency is generally in a relatively weak position here when making accusations. Defense lawyers must do something on this issue.
Third, ask for the property of others. Asking for bribes is relatively simple. As long as the suspect takes advantage of his position to ask the trustee for property, it may constitute a crime whether the trustee really delivers it or not.
Defense skills: Because the crime of accepting bribes is a relatively secret crime, bribers and bribers mostly choose secret transactions, so the evidence of public prosecution agencies in demanding bribes is relatively weak. If there is only the testimony of the briber without the confession of the briber or the testimony of other witnesses cannot be identified, the defense lawyer must seize this point to defend.
4. Illegally accepting other people's property and seeking benefits for others. Suspects should not only accept property, but also seek benefits for others, both of which are indispensable. There are two main cases of receiving property here: first, the property actually received; The second is the property promised to pay in the future. Moreover, seeking benefits should not seek illegal interests, and legitimate interests can also constitute bribery.
(Quote a point of view)