How should it be determined that a national staff member designates someone to purchase a product sold by a third party?
2024-08-01
In practice, there is a new form of corruption where state officials designate someone to purchase products sold by a third party, which can be referred to as the "designated purchase type". We believe that whether such cases can be classified as bribery crimes and how to calculate the specific amount of the crime can be determined based on whether the client has genuine purchasing needs and different circumstances. The first type is "real demand type", which refers to the situation where the client has a real demand for the product sold by a third party, and can be divided into two specific situations. One reason is that the product price is not significantly higher than the market price. In this situation, for the requester, regardless of which channel they purchase from, they need to pay similar prices and costs, and there is no obvious intention to transfer benefits subjectively; For state officials, the main intention is to use their power to provide assistance for the business activities of third parties, and there is no subjective intention to accept property from the client through this means. Therefore, under normal circumstances, it does not constitute a crime of bribery, but if the third person is a specific related person of the state staff, it can be identified as violating the integrity discipline, and the provisions of Article 104 of the Regulations of the CPC on Disciplinary Action (hereinafter referred to as the Regulations) shall apply. Secondly, the product price is significantly higher than the market price. If state officials and a third party have the intention to jointly accept bribes through this method, it can be determined as a bribery crime, and the amount of the bribery crime is generally determined by the difference between the purchase price and the market price. This situation first requires state personnel to have a clear understanding that the price of products sold by third parties is significantly higher than the market price. Secondly, it is required that state personnel have intentional possession of the difference. If a third party is a specific related person of state personnel, it can be directly recognized; If the third party is not a person with a common interest, it is required that both parties have the conspiracy and intention to jointly accumulate wealth through this method. The second type is the "no real demand type", which refers to the situation where the principal fabricates the demand to purchase goods or services without real demand, or transfers benefits to specific related parties of state officials through fictitious transaction links. This can generally be recognized as a crime of bribery. In this situation, the inflated transaction link is a tool for the bribery parties to transfer benefits, rather than a real market transaction behavior. Therefore, all the money obtained by a specific related party can generally be recognized as the amount of bribery crime. In practice, for such "no real demand" cases, it is required that state personnel have the intention to knowingly demand that the client has no actual purchasing needs. Therefore, a comprehensive analysis and judgment should be made based on the perpetrator's account, the client's business operations, and the type of products sold by third parties. For the above-mentioned suspected bribery crimes, the provisions of Article 29 of the Regulations shall be applied for handling. Article 29 of the Regulations on Disciplinary Punishment of the CPC, which is linked to the regulations, shall be given the punishment of canceling the post within the Party, staying in the Party for inspection or expelling the Party membership if the Party organization finds that the Party member has committed corruption, bribery, abuse of power, dereliction of duty, power rent-seeking, interest transmission, malpractice for personal gain, waste of state assets and other suspected criminal acts in violation of the law during the disciplinary review. Article 104: Those who use their power or influence in their positions to seek benefits for their spouses, children, their spouses, and other relatives and specific related persons in areas such as approval and supervision, resource development, financial credit, bulk procurement, land use right transfer, real estate development, engineering bidding, and public finance revenue and expenditure, and the circumstances are relatively minor, shall be given a warning or a serious warning punishment; Those with serious circumstances shall be subject to revocation of their party positions or probation within the party; Those with serious circumstances shall be expelled from the Party. Those who use their power or influence in their positions to provide assistance and seek benefits for their spouses, children, their spouses and other relatives, and other specific related persons by absorbing deposits, promoting financial products, operating special resources of precious specialties, etc., shall be dealt with in accordance with the provisions of the preceding paragraph. (New Society)
Edit：Lubaikang Responsible editor：Chenze
Source：southcn daily
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