An Analysis of the Nature of the Intermediary's Behavior of Intercepting Bribery or Obtaining Appreciation Fees

2023-03-29

[Typical Case] Guan is the director of a bureau in City A, and Qian and Zhong are private entrepreneurs. Qian Mou learned that Zhong Mou had a good relationship with Guan Mou (not a specific relationship person), so he gave Zhong Mou 3 million yuan and asked him to transfer it to Guan Mou and ask for assistance in approving a matter as soon as possible. Zhong handed over 1 million yuan to Guan and informed him that the money was sent by Qian. The remaining 2 million yuan was left behind privately. Later, Guan used his authority to help Qian complete the approval process. Qian thanked Zhong for his coordination and gave him a separate "thank you fee" of 500000 yuan. [Disagreements] There is no objection to Guan's acceptance of 1 million yuan as a bribe, but there are different opinions on the nature and amount calculation of Qian and Zhong's related actions. The first opinion is that Zhong's entire behavior belongs to the crime of introducing bribery. The 2 million yuan intercepted privately and the 500000 yuan "thank you fee" obtained by him are all illegal proceeds from the crime of introducing bribery and should be confiscated. The second opinion is that the behavior of Zhong Mou accepting a request from Qian Mou and giving Guan Mou 1 million yuan should be considered as a joint bribery by the two people; The 2 million yuan intercepted by Zhong without authorization constitutes a crime of fraud; The 500000 yuan "thank you fee" obtained by Zhong is not related to a crime. The third opinion is that Qian and Zhong constitute a joint bribery of 1 million yuan. In addition, Zhong's unauthorized interception of 2 million yuan and acceptance of 500000 yuan of "thank you fees" constitute the crime of taking bribes using influence, with a criminal amount of 2.5 million yuan. Accordingly, Qian constitutes a bribe of 2.5 million yuan to influential people. [Comment] The author agrees with the third opinion, and the specific analysis is as follows: First, it is not appropriate to conduct a general evaluation of Zhong's relevant behavior based on the crime of introducing bribery. The author believes that it is inappropriate to completely identify the intermediary's behavior as the crime of introducing bribery, and confiscate the property intercepted and obtained as "thank you fees" as illegal income. The first is inaccurate nature determination. The crime of introducing bribes refers to the serious act of introducing bribes to state functionaries. In practice, it is relatively rare for intermediaries to be in a completely neutral position and only engage in matchmaking between the petitioner and state functionaries. Intermediaries are generally entrusted by the petitioner or conspire with state functionaries to personally participate in the transfer or acceptance of property. In this case, according to China's criminal law theory, intermediaries fully meet the conditions for constituting an accomplice in bribery or bribery. The second reason is that the punishment for intermediaries is excessively light. The legal penalty for the crime of introducing bribery is imprisonment or criminal detention for up to three years, which is significantly lighter than other bribery crimes. In addition, since the crime of introducing bribery does not belong to a typical "amount crime", there is only one stage of punishment. Using the crime of introducing bribery as an intermediary behavior will lead to the occurrence of a situation where "regardless of the amount involved, the punishment will be the same", which is not only detrimental to punishing a large number of "brokers" in practice, but also contrary to the principle of consistency between crime and punishment. Third, there was no evaluation of some of the petitioner's bribery behaviors. In practice, the main purpose of determining the crime of introducing bribes is usually to include in the scope of the crime the property that the intermediary intercepts and obtains "thank you fees" from the applicant, and then confiscates it. Otherwise, it will face the problem that the above-mentioned property cannot be disposed of. However, since the crime of introducing bribery is not a matching crime and there is no bribe giver, it should be recognized

Edit:Ying Ying    Responsible editor:Shen Chen

Source:www.ccdi.gov.cn

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