Gifts in the name of "holiday", is it a gift or a bribe?

Typical Case

Wang, the legal representative of X Shipping Transport Co., Ltd..

In order to successfully obtain bank loans through approval procedures, from 2007 to 2008, the Dragon Boat Festival, the Mid -Autumn Festival, and the Spring Festival, Wang gave it to the Credit Management Department of Industrial and Commercial Bank of China (hereinafter referred to as the "ICBC A Sub -branch"). A total of RMB 30,000.

The specific division is as follows:

(1) Before the Spring Festival, Dragon Boat Festival, and Mid -Autumn Festival in 2007, Wang gave Li a cash of RMB 55,000 at the entrance of Li's residence, totaling 15,000 yuan;

(2) Before the Spring Festival, Dragon Boat Festival, and Mid -Autumn Festival in 2008, Wang gave Li a cash of RMB 55,000 at the entrance of Li's residence, totaling 15,000 yuan.

From September 7, 2006 to December 1, 2009, the ICBC A Sub -branch of the ICBC had a loan of about 30 million yuan from the ship owners who had been attached to the X Shipping Company, and the loan approval person was Li.

In April 2019, the local supervisory organs investigated the case for Wang's suspicion of bribery.

Question: Does Wang's behavior constitute a crime of bribery?

Viewpoint 1: The behavior of Wang sent money to Li occurred in 2007 and 2008 Spring Festival, Dragon Boat Festival, Mid -Autumn Festival, which is an important festival for human relationships.

Moreover, the amount of money from Wang was 5,000 yuan each time, and did not meet the prosecution criteria for bribery.

Therefore, Wang's behavior should be understood as a gift for human relationships and does not constitute a crime of bribery.

Views 2: In order to successfully pass the loan approval procedures, Wang obtained bank loans to send money to Li, which is a mining advantage of uniform competition.

Although the amount of money for a single delivery has not reached the criterion for the crime of bribery, the cumulative amount has reached the standard of prosecution and shall be held criminally responsible for bribery.

Evaluation

I agree with the second point of view.

According to the relevant provisions of my country's criminal law, in order to obtain unfair interests, it is crime of bribery to the state staff.

In this case, Wang sent money to Li in order to successfully obtain bank loans through loan approval procedures, and there was no controversy about the fact.

The focus of the controversy in this case is that Wang sent money to Li at the important node of human relationships. Without the amount of prosecution in the crime of bribery, Wang's behavior belongs to a gift or bribery?

1. The boundary between bribes and gifts.

According to the Supreme People's Court and the Supreme People's Procuratorate's "Opinions on the Application of Laws for Criminal Criminal Cases of Commercial Bribbles" (Fa Fa [2008] No. 33), a criminal case for commercial bribery should be paid to the boundary between bribes and gifts.

The main analysis and comprehensive judgment should be comprehensively analyzed in combination with the following factors:

(1) The background of property exchanges, such as whether the two parties have the relationship between relatives and friends and the situation and extent in history; (2) the value of the property of the property; Whether there is a job as a request; (4) Whether the receiver uses the convenience of the position to seek the benefits of the provider.

2. Wang sent money to Li, not based on human relationships, but seeking things.

In this case, Wang and Li are not relatives and friends, but the business relationship between loans and lending.

The behavior of Wang sent money to Li occurred in the Spring Festival, Dragon Boat Festival, Mid -Autumn Festival in 2007, 2008, and from September 7, 2006 to December 1, 2009, ICBC A Sub -branch The company's ship ownership loan.

These two times have a heavy coincidence, and the loan is approved by Li.

As far as Wang's subjective purpose is concerned, his purpose of sending money is to hope that Li will take care of the loan approval and successfully obtain bank loans through the loan approval procedures, that is, Wang has a job for Li.

Therefore, Wang's behavior to send money to Li is not based on human relationships, but something to ask for each other. It is a bribery behavior.

3. Wang's behavior has reached the criteria for prosecution for bribery.

According to the Supreme People's Court and the Supreme People's Procuratorate's "Explanation of Several Issues on Criminal Criminal Cases in Criminal Criminal Cases" (Fa Shi [2016] No. 9), in order to obtain unfair interests, bribe with national staff. In accordance with the provisions of Article 390 of the Criminal Law, criminal liability for bribery.

In this case, if you look at Wang's bribery, he has not reached the criterion for prosecution for bribery.

However, Wang's cumulative amount of money was 30,000 yuan, but the prosecution criteria for bribery were reached.

So for Wang's behavior, should it be qualitative or accumulated in accordance with the amount of money for a single delivery?

According to Article 5 of the Supreme People's Court and the Supreme People's Procuratorate's "Explanation on Several Issues on Criminal Criminal Cases of Bringing Criminal Criminal Cases", if the bribery is not treated many times, the bribery is punished in accordance with the cumulative amount of bribery.

In this case, Wang's cumulative amount of money was 30,000 yuan reached the criterion for the crime of bribery. Therefore, criminal responsibility should be investigated for bribery.

Related knowledge points

1. Article 389 of the Criminal Law of the People's Republic of China: "For the sake of uniform interests, it is crime of bribery.

In economic exchanges, if you violate state regulations, give state staff, and give a large amount of property, or if the amount is large, or violates the state regulations, it will give state staff with a variety of names and fees in various names to take bribes.

If it is ransomed to the state staff to pay for property, those who have not obtained unfair benefits are not bribery. "

2. Article 5 of the Supreme People's Court and the Supreme People's Procuratorate "Several Issues on Criminal Criminal Cases for Bringing Criminal Criminal Cases": "If many bribes are not treated many times, they will be punished according to the cumulative amount of bribery." Source: the Central Commission for Discipline Inspectionwebsite

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