Is it bribery for others to pay for mobile games
2022-03-02
Is it bribery for others to pay for mobile games From the case of Shen Xinyu, former vice president of Taihu new town group in Wuxi, Jiangsu Province Our reporter Fang Yifei Special guest Zhang Xiaowei, director of the case trial Office of Wuxi Municipal Commission for Discipline Inspection and supervision Huangfengwei cadre of the fifth examination and Investigation Office of Wuxi Municipal Commission for Discipline Inspection and supervision Zhang Ziyang post of prosecutor of Binhu District People's Procuratorate of Wuxi City Ding Jiong, President of criminal trial division of Binhu District People's Court of Wuxi City Editor's note This is a case in which leading cadres of state-owned enterprises traded power and money by asking others to pay the recharge fee of mobile game account on their behalf. In this case, Shen Xinyu binds and recharges the Alipay account and his mobile phone account to others, pays part of the renovation cost by others, and makes use of his office to facilitate the interests of the relevant personnel. Does these actions constitute bribery? How to determine the direction of evidence collection around the charges involved, and how to calculate the amount of bribes? Shen Xinyu resigned as a civil servant when his main criminal act occurred. Does it meet the main constituent elements of the crime of bribery? Part of his attempted bribery, what impact does it have on sentencing? We specially invite the staff of relevant units to analyze it. Basic case: Shen Xinyu, male, born in March 1975, is a member of the Communist Party of China. He once served as deputy director of Binhu District Construction Bureau of Wuxi and deputy director of construction and Environmental Protection Bureau of Wuxi Taihu City Working Committee. In July 2015, he resigned from civil service. Since then, he has successively served as deputy general manager and general manager of Wuxi xinzhenze Industrial Co., Ltd., chairman and general manager of Wuxi Xinze Investment Development Co., Ltd., chairman of Wuxi Xindu Real Estate Development Co., Ltd., member of the Party committee and vice president of Wuxi Taihu New Town Development Group Co., Ltd. (wholly state-owned, hereinafter referred to as Taihu new town group). From 2015 to 2021, Shen Xinyu took advantage of his position as a member of the Party committee, vice president and head of subordinate subsidiaries of Taihu new town group to provide help for others in project undertaking and management, project payment and other aspects, and repeatedly accepted bribes from 25 people such as boss sun and Han to pay for recharge fees of mobile game account and house decoration expenses, The total amount is more than 7.42 million yuan (the same currency below), of which the actual bribery is more than 5.42 million yuan. Investigation process: [filing, review and investigation] on June 24, 2021, the supervision committee of Wuxi Municipal Commission for Discipline Inspection decided to file, review and investigate Shen Xinyu's suspected serious violation of discipline and law and take retention measures against him. [transfer for examination and prosecution] on August 24, 2021, Wuxi Municipal Supervision Commission transferred Shen Xinyu's case of suspected bribery to Wuxi Municipal People's Procuratorate for examination and prosecution according to law. On September 8, 2021, Wuxi Municipal People's Procuratorate designated the case to Wuxi Binhu District People's Procuratorate for jurisdiction. [Party discipline and administrative sanctions] on September 9, 2021, Shen Xinyu was expelled from the party after being studied at the meeting of the Standing Committee of Wuxi Municipal Commission for Discipline Inspection and reported to Wuxi Municipal Party Committee for approval; Shen Xinyu was expelled from public office by the municipal supervision commission. [public prosecution] on September 27, 2021, Wuxi Binhu District People's Procuratorate filed a public prosecution with Wuxi Binhu District People's Court on Shen Xinyu's suspicion of bribery. [judgment of first instance] on January 19, 2022, Wuxi Binhu District People's court sentenced Shen Xinyu to fixed-term imprisonment of ten years and three months and a fine of 500000 yuan in the first instance for the crime of bribery. At present, the judgment has entered into force. Shen Xinyu uses his Alipay account to pay his mobile games account to pay the recharge. How can he determine the charges involved? How to determine the direction of evidence collection around the charges involved? Huang Feng Wei: Shen Xinyu paid two dollars for his own mobile phone game account with Alipay account. There were three kinds of opinions in the early stage of the ad hoc group: one view was that Shen Xinyu took advantage of his duty to pay the expenses that he should pay by himself, and violated the integrity and discipline. Another view is that Shen Xinyu took advantage of his position to seek benefits for others and accepted others' property by paying the recharge fee of mobile game account by others, which is suspected of bribery crime. After preliminary verification, Shen Xinyu took advantage of his position as vice president of Taihu new town group to provide help for a decoration Engineering Co., Ltd. in Wuxi in project undertaking, and accepted bribes from sun, the actual controller of the company, by paying the recharge fee of mobile game account on behalf of him. The amount is huge, which is in line with the essential characteristics of power money transaction, Therefore, it should not be simply identified as a violation of integrity and discipline, and should be investigated on suspicion of bribery. Combined with the evidence materials obtained through preliminary verification, and focusing on the constituent elements of bribery crime, we further improve and strengthen the evidence, which is mainly divided into three aspects: first, the subject identity evidence. Shen Xinyu's registered residence data, appointment and removal of the cadres, the appointment and removal of documents, and the division of work documents of leadership were verified by Shen Xinyu's confirmation. The second is subjective evidence. Interrogate Shen Xinyu about his motivation and purpose of accepting bribes, whether there is a causal relationship between accepting property and seeking benefits, and whether he knows the amount of bribes; Sun Mou's bribery motives and purposes, and how to ask for things to Shen Xinyu, asked Sun Mou that he had never played mobile phone games and would not replay the game accounts. The Alipay account game recharge records were all the result of Shen Xinyu's operation, thus locking Shen Xinyu's intention of taking bribes. Third, objective evidence. The mobile phone group mobile has bought the mobile phone account of Sun Mou's Alipay account, and has seized the mobile phone of Sun Mou's mobile phone for electronic forensics. It has locked key information such as Shen Xinyu's mobile phone account, name of the game, and confirmed that the mobile game account is actually used by Shen Xinyu. At the same time, in order to determine the exact amount of the recharge fee paid by sun to Shen Xinyu, the task force entrusted professional technicians to conduct inspection and fix relevant evidence. In addition, the task force also obtained the enterprise registration data of a decoration Engineering Co., Ltd. in Wuxi, and Shen Xinyu used his position in charge of engineering construction to help sun undertake the relevant documentary evidence of the construction project. Shen Xinyu received the recharge fees of mobile game account paid by others and the house decoration fees paid by others. How to calculate the amount of bribes? Zhang Xiaowei: after checking, Shen Xinyu tied his mobile phone game account to a Alipay account, which was used to recharge his mobile phone account. In order to verify the amount of recharge, on the one hand, we comb Shen Xinyu's transcript, Sun Mou's testimony, and the game's login IP address and other evidences, so as to clarify the real name of Shen Xinyu's Alipay account recharge. On the other hand, solve the problem that the recharge records of the payment platform and the game platform do not match completely. Through investigation, the task force found that part of the recharge amount will be consolidated and settled when the payment platform and the game platform are settled, resulting in the recharge records of the two platforms not corresponding one by one. After comparing the retrieved recharge records one by one, the recharge records with similar time and consistent amount shall be recognized according to the principle of benefiting the respondent. According to the investigation, from May 2017 to August 2020, Shen Xinyu accepted bribes of more than 1.27 million yuan by paying the recharge fee of mobile game account on behalf of sun. In addition, we also found that from November 2017 to October 2018, Mr. Sun decorated a property for Mr. Shen Xinyu, and Mr. Shen Xinyu paid Mr. Sun 200000 yuan for decoration. After the decoration, sun informed Shen Xinyu of the total decoration cost and said that the remaining decoration cost did not need to be paid, and Shen Xinyu agreed. Mr. Sun said that he had paid more than 670000 yuan to help Shen Xinyu decorate, but he was unable to provide all the bills and vouchers. The task force entrusted a real estate appraisal company to evaluate the architectural decoration project of the real estate involved, and the estimated cost was more than 650000 yuan, but the decoration cost that the task force could finally verify was more than 610000 yuan. In the case of incomplete certificates of decoration expenses and the inconsistency between the evaluation price and the self-reported price of sun, according to the principle of being beneficial to the respondent, the task force adopted the actual verified decoration expenses and determined that the price difference of decoration expenses paid by Shen Xinyu on behalf of sun was more than 410000 yuan. At the time of his main criminal act, Shen Xinyu had resigned as a civil servant. Is it in line with the main constituent elements of the crime of bribery? Does the game equipment purchased by arranging others to pay the recharge fee of mobile game account belong to the "property" in criminal law? Zhang Ziyang: according to Article 385 of the criminal law, the subject of bribery crime is state functionaries. Article 93 of the criminal law stipulates the scope of state functionaries. In this case, Shen Xinyu, formerly the deputy director of the construction and Environmental Protection Bureau of Wuxi Taihu City Working Committee, resigned as a civil servant in July 2015. The evidence shows that Shen Xinyu's crime office mainly took advantage of his position as vice president of Taihu new town group, which was appointed after being approved by the Organization Department of the CPC Wuxi Municipal Committee and the Party committee of the state owned assets supervision and Administration Commission of Wuxi Municipal People's government and nominated by the state owned assets supervision and Administration Commission of Wuxi Municipal People's government. The opinions of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the specific application of law in handling job-related crime cases in state funded enterprises stipulates that persons who are nominated, recommended, appointed and approved by state organs, state-owned companies, enterprises and institutions to engage in public affairs in state-owned holding and joint-stock companies and their branches shall be recognized as state functionaries. It can be seen that although Shen Xinyu no longer has the status of a civil servant, he is still a state functionary engaged in public affairs in a wholly state-owned enterprise, which meets the main constituent elements of the crime of bribery. About arranging others to pay the recharge fee of mobile game account, and whether the purchased game equipment belongs to the "property" stipulated in the criminal law. Article 12 of the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of law in handling criminal cases of corruption and bribery stipulates: "the 'property' in the crime of bribery includes money, goods and property interests." In combination with Article 7 of the opinions of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of law in handling criminal cases of commercial bribery: "the property in commercial bribery includes both money and material objects, as well as property interests that can be calculated with money, such as providing house decoration, membership cards containing money and token cards (coupons) , travel expenses, etc. The specific amount shall be subject to the actually paid tariff. " In this case, Shen Xinyu used Alipay account provided by Sun Mou to recharge the mobile phone game account. Although the game equipment he purchased belonged to the virtual property, he actually arranged for Sun Mou to pay more than 127 yuan for the fee. Therefore, the game equipment belonged to the "property" in the bribery crime stipulated by the criminal law. What impact does Shen Xinyu's attempt to accept bribes have on his sentencing? The defender put forward Shen Xinyu's defense opinion that "he is a first-time offender and has withdrawn part of the stolen money. It is suggested to reduce the punishment" and "he has the circumstances of confession and confession, and can be dealt with leniently in accordance with the law"? Ding Jiong: Article 23 of the criminal law stipulates that "those who have begun to commit a crime but fail to succeed due to reasons other than the will of the criminal are criminal attempts. The attempted crime can be given a lighter or mitigated punishment compared with the accomplished crime." According to the theory of criminal law, generally, the crime of bribery is accomplished by obtaining property, and it is attempted without obtaining property. In this case, at the end of 2017, under the care of Shen Xinyu, a technology Co., Ltd. in Jiangsu Province undertook the HVAC business of Taihu New Town International School. In the second half of 2018, Mr. Han, the legal representative of the company, proposed to Shen Xinyu to reserve the right of the project for him
Edit：Luo yu Responsible editor：Jia jia
Source：jjjcb.ccdi.gov.cn
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