Explanation of the law by case clarification
2022-06-22
[typical case] Mr. Sun, head of a construction enterprise in County B; Li, Secretary of the Party committee of county B. Sun wanted to obtain an industrial poverty alleviation construction project in the county, so he asked Li for help and bribed him 1million yuan. At the instigation of Mr. Li, the bidding document for the construction project was basically customized according to the qualifications of Mr. Sun. Later, Mr. Sun successfully won the bid for the construction project, with a contract amount of 35million yuan and a one-year construction period. After being appraised by the professional appraisal institution, the reasonable expenditure for the project construction is 27.5 million yuan. [disagreement] There are some disputes in practice on whether and how to recover sun's illegitimate interests obtained in the case. The first opinion is that although Mr. Sun offered bribes to public officials in the process of striving for the project and obtained certain opportunities or competitive advantages, his gains were mainly due to the subsequent legal project construction behavior, and there was no direct relationship between his bribery and profits. Therefore, Mr. Sun's profits in the project should not be recovered. The second opinion is that although Mr. Sun's profits are generated by the construction of a legal project, the opportunity for the construction of the project is obtained through bribery. Without the opportunity of bribery, there can be no subsequent huge income. The project construction behavior is only an intermediary factor to promote the realization of interests, and will not hinder the causal relationship between bribery and illegal income, Therefore, sun's profits in the project should be fully recovered. The third opinion is that: according to the principle of "no one gains from illegal acts", sun's profits in the project should be recovered, but in terms of the amount recovered, the reasonable expenses directly used for the construction of the project and the interest on bank deposits in the same period should be deducted. [comments] The author agrees with the third opinion. The focus of the dispute in this case is whether the interests obtained through bribery and then through legal means can be recovered as illegitimate interests. The author believes that it can be analyzed from three dimensions: the manifestation of "illegitimate interests", the nature of behavior and social fairness and justice. 1、 An analysis of the manifestation of "illegitimate interests" What is illegitimate interest? Article 9 of the opinions of the Supreme People's court and the Supreme People's Court on Several Issues concerning the application of law in handling criminal cases of commercial bribery in 2008 stipulates that in the crime of bribery, "seeking illegitimate interests" means that the briber seeks interests in violation of laws, regulations, rules or policies, or asks the other party to provide help or convenience in violation of laws, regulations, rules, policies or industry norms. In business activities such as bidding and government procurement, those who violate the principle of fairness and give property to relevant personnel to seek competitive advantage are "seeking illegitimate interests". Accordingly, illegitimate interests can be divided into two categories: one is the interests for which illegitimate grounds can be found from the provisions of laws, regulations, rules, policies and industrial norms, and the other is the unfair interests obtained in competitive business activities. This case obviously belongs to seeking unfair interests in competitive business activities. 2、 Judge from the perspective of "directness" The premise of pursuing the illegal income is that the perpetrator has directly obtained practical benefits through his bribery. If there is no other intermediate link between bribery and obtaining benefits, there will be no problem in the determination of directness. However, in practice, the acquisition of interests is often more complex, often showing the phenomenon of "multiple causes and one result". At this time, we need to look at the essence through the phenomenon, judge whether bribery is the most fundamental factor leading to the acquisition of benefits, and provide strong evidence support for us to recover the illegitimate benefits obtained through bribery. In this case, Mr. Sun obtained the opportunity to undertake the project through bribery. Although the realization of his final interests includes Mr. Sun's enterprise qualification, construction capacity, labor payment and quality acceptance, if he cannot undertake the project, all profits will be impossible. Here, bribery is particularly critical to the acquisition of interests, and the direct causality is self-evident here. Therefore, the author believes that as long as the interest has the possibility of realization and prediction at the time of bribery, and also has the reasonable realization of the interest in the later stage, other legitimate acts of intermediary intervention do not affect the determination of the directness of the causal relationship between bribery and illegal income. 3、 Derivation from the dimension of maintaining social fairness and justice Bribery directly destroys the principle of equal opportunity in the market economy, resulting in "bad money expels good money" and abnormal monopoly, and damaging the integrity of public power and the value concept of fairness and justice. Therefore, the briber should be punished properly. However, after the incident, the opportunity and competitive advantage gained from bribery have been fully utilized, and there is no realistic possibility to restore the status quo ante. If the benefits obtained from operating activities by taking advantage of this opportunity and competitive advantage are not deprived, the vast majority of bribery will not be properly handled, which deviates from the concept of social fairness and justice. Therefore, in the process of investigating and handling cases, we should not only deprive the illegitimate benefits directly derived from bribery, but also deprive the illegitimate benefits indirectly derived from bribery. In addition, on the premise of determining that the illegitimate interests should be recovered, the scope of recovery should be further clarified. The illegitimate interests obtained by Mr. Sun in the construction of the project can be dealt with by referring to the provisions of Article 2 of the measures for the determination of illegal income from administrative penalty cases of administrative organs for Industry and Commerce formulated by the former State Administration for Industry and commerce that "the illegal income is the total income obtained by the party from the illegal production and sale of goods or the provision of services minus the appropriate and reasonable expenses directly used by the party for business activities". In this case, a professional appraisal institution was entrusted to appraise the reasonable expenditure of the project construction, deduct the bank deposit interest of 500000 yuan in the same period, and finally recover 7million yuan from Mr. Sun. (wangzhongjun, supervision committee of Jiaxing Municipal Commission for Discipline Inspection, Zhejiang Province; chenlanfang, supervision committee of Xinyu Municipal Commission for Discipline Inspection, Jiangxi Province) (outlook new era)
Edit：Luo yu Responsible editor：Wang xiao jing
Source：ccdi.gov.cn
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