Five cases tell you: What cooperation investments of party members and cadres are bribery?

On September 1, Xiang Fenghua, the former deputy secretary of the party group and deputy prosecutor of Xianju County People's Procuratorate in Zhejiang Province, was sentenced to three years and two months in prison for bribery. The judgment shows that Xiang Fenghua uses the convenience of his position to help the business owner Gao Mou in terms of case handling and other matters, and receives 151,600 yuan from Gao Mou with investment returns.

According to Guo Jingwu, deputy director of the trial room of the Xianju County Commission for Discipline Inspection, Gao once asked Xiang Fenghua to "take care of" a criminal case to thank Xiang Fenghua to "invest in business."

On September 28, 2016, Xiang Fenghua paid 300,000 yuan in investment in the name of others. In just over half a month, Gao Mou returned 300,000 yuan to Xiang Fenghua and transferred to the latter "investment income" 151,600 Yuan. This is a typical case of violations of laws and disciplines in the name of investment in the name of investment.

Article 3 of the Supreme People's Court and the Supreme People's Procuratorate's "Opinions on Several Issues on Criminal Cases of Criminal Criminal Cases" stipulates that: national staff uses the convenience of their positions to ask for interests to ask for interests, and ask the entrance to the entrance to the company. For other "cooperation" investment, it is based on bribery.

The amount of bribery is the amount of capital invitation to the state staff. The convenience of the state staff uses the convenience of the job to seek the benefits and obtain the "profit" in the name of the company or other cooperative investment in cooperation. If there is no actual capital contribution and participation in management and operation, the bribery is subject to bribery.

This type of "cooperative investment" has been uncommon for bribery in recent years. Among these issues, on the surface, state staff participated in business activities. According to the shareholding ratio, it is difficult to determine whether it is significantly higher than the investment of the capital. It is easy to confuse to do business in violation of regulations.

Therefore, it has become a shame for a small number of party members and cadres to avoid legal sanctions and cover up the trading of rights.

"I have been engaged in anti -corruption and public prosecution for a long time, and I have a deep understanding of duty crime. In such a short time, Gao returned such a high return to me, and I realized that the money was abnormal, but at that time If you want to invest in business as a cover, you can accept it with peace of mind. "Xiang Fenghua said.

From a practical point of view, bribes are generally divided into two types in the name of cooperative investment in the company.

The first category is to "contribute to the capital" to accept bribes, that is, the actual funding of the entrustment person, but in the name of the state staff, this is not essentially different from the direct acceptance of property. The profit obtained is determined to be criminal.

For example, Wang Wei, former director of the Western District Branch of Luzhou City, Zhejiang Province, cooperated with Gu Mou and Wang Mou to develop a block in Luzhou City, Luzhou City, of which Gu Mou contributed 710,000 yuan, Wang Mou contributed 1.35 million yuan, and Wang Wei contributed 11 to 11 10,000 yuan, but the 110,000 yuan was given to Wang Wei for bribes before.

Afterwards, Wang Wei actually exercised and enjoys the management power and profit distribution of the partnership. Because Wang Wei accepts 110,000 yuan paid by others in the form of paying in the form of a substitute, the allegations of the bribery of them are established.

The second type of cooperative investment -type bribery is the "direct profit" bribery. It is a national staff participating in cooperative investment, no actual capital capital, no participation in management and management, but obtaining business profits, which is essentially equivalent to directly receiving profit.

For example, according to the "Qin Zhengwu's Criminal Decision on the First Trial of Bringing Bringing Bringing" published by the referee document network, Qin Zhengwu, former deputy investigator and chief of basic education department of Zhangjiajie Education Bureau, Hunan Province, said that he had no funds in the process of cooperating with the business owner. Qin Zhengwu did not need to invest in but occupy a 20%share of the project. After that, Qin Zhengwu used his authority to enable the company to enter the primary and secondary school market in Zhangjiajie. In fact, Qin Zhengwu did not contribute and did not participate in the company's management. In the judgment, the dividend of 70,000 yuan received by Qin Zhengwu twice was identified as a bribe.

The judicial interpretation of the two state staff has not actually contributed it, and it is relatively easy to judge.

For other incomplete conforming to judicial interpretation, whether the difference between the proportion of investment and the income of dividends must be comprehensive judgment, whether the difference between the income from the dividend is abnormal, whether it is involved in operating management and undertaking the risk of business, and whether to use power profit. In practice, the national staff participated in cooperative investment and the following two common models. Whether it constitutes bribery should be analyzed according to the case:

In the first category, national staff contributed, but did not participate in management operations. If the income obtained by the state staff is basically equivalent to the income of their capital, and it does not constitute bribery, if its behavior violates the "Regulations on the Disciplinary Actions of the Communist Party of China" and the "Law of the Public Officials of the People's Republic of China", party discipline and government affairs shall be given in accordance with regulations. On the contrary, if the income from the state staff is much greater than the profitable profits, it constitutes a bribe, and the amount of bribery is the difference between the revenue and the due income.

For example, Bao Jinxun, the former director of the Geological Mineral Management Institute of Wencheng County, Wenzhou City, Zhejiang Province.

While obtaining high investment returns, Bao Jinxun opened the door for the enterprise in terms of daily patrol supervision and administrative punishment. After the court trial, after deducting normal income, the amount of Bao Jinxun's bribery was finally determined that the amount of Bao Jinxun was 697,500 yuan.

In the second category, national staff contributed and participated in management. If the state staff participates in actual management and operation, its income, funds, technology, and intelligence are quite directly correlated, and they will not be evaluated in criminal law. If you violate the relevant party rules and discipline, you should be punished accordingly. For example, Ni Yongxing, the head of the Garden Greening Management Station of Zhenzhen Town, Wujiang District, Suzhou City, Jiangsu Province, and his wife and brother Zhou Moumou invested in a greening company, each of which accounted for 50%of the shares.

Ni Yongxing directly participated in business activities in the company's engineering bidding amount, seedlings and maintenance and maintenance, and achieved a profit dividend of 5.5193 million yuan in 8 times. Because of the investment ratio, Ni Yongxing and Zhou Moumou each obtained 50%of the dividends, and Ni Yongxing directly participated in the operation. It was not sure that he was criminal.

If the state staff contributed and participated in management and operation, but the income that exceeds the proportion of contribution, whether this is a bribery, the key depends on whether it uses the job convenience to ask for the benefit to ask for the benefit. As long as it meets the essential characteristics of power and money transactions Regardless of whether it is clearly agreed not to divide the contribution ratio, the part of the more than the contribution ratio should be identified as the amount of bribery.

It is worth noting that state staff borrow money to invest or be cooked by others, and has evidence to prove that borrowing or cashier is the true meaning of both parties, rather than covering up the guise of bribery.

However, if the state staff requires others to pay for capital, and afterwards, the profit is discounted, it does not belong to the borrowing investment behavior. In fact, it does not contribute.

Source: Anhui Discipline Inspection and Supervision

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