How to identify the crime of commercial bribery
First, the subject of commercial bribery crime
Commercial bribery, including bribery and bribery, is a crime established by collusion between bribery and bribery. It is an inseparable two-way behavior, and its criminal subjects include bribery subjects and bribery subjects accordingly.
1, the subject of the crime of commercial bribery is the general subject, as long as it is "giving property to the staff of a company, enterprise or other unit for illegitimate interests", it can constitute the crime of commercial bribery. In commercial bribery, if a bribe is paid in the name of the operator's legal entity and the will of the legal entity is carried out, the legal entity shall bear the responsibility and become the subject of commercial bribery. If the agent of the operator sells more goods or pulls back the supply of goods for himself, and pays bribes by various means in his own name, the agent is the subject of the crime of accepting bribes.
2. The subject of the crime of commercial bribery is the staff of companies, enterprises or other units. The newly adopted criminal law amendment (VI) extends it to the staff of other units other than companies and enterprises, which shows that in practice, if the main body is only the staff of companies and enterprises, it is not enough to cover the scope of commercial bribery actually existing in social life. For example, the staff of public institutions in the fields of medical care, education, engineering construction and property rights transactions. Accepting kickbacks is essentially a commercial bribe. The provisions of the original criminal law are unclear and cannot cause harm to its staff. Therefore, only national staff, enterprise staff and staff of other units can become a complete extension of the natural person subject that constitutes the crime of accepting bribes. Therefore, the subject scope of commercial bribery crime will be broadened to a certain extent in legislation, which will make its coverage tend to be comprehensive and complete, reflecting the progress of China's criminal law in punishing commercial bribery crime.
Second, the subjective aspects of commercial bribery crime
The subjective aspect of commercial bribery crime should be direct intention, that is, the actor actively pursues the occurrence of criminal results. At the same time, the perpetrator of this crime should have the purpose of soliciting or accepting bribes and seeking benefits for others. "Seeking benefits for others" as a reward for others, whether the benefits sought are realized or justified does not affect the establishment of this crime, that is, it includes both the benefits that others deserve and the improper benefits that others do not deserve; It includes not only the interests that have been sought for others, but also the interests that have been sought or are being sought, but have not yet been sought. However, if the actor does not have the intention, commitment and facts to seek benefits for others, it does not constitute this crime.
"Seeking benefits for others" is an important element of the crime of commercial bribery stipulated by legislation. Since commercial bribery mainly infringes on the fair market transaction order, whether bribery infringes on this legal interest depends on whether there is a consideration relationship between the behavior of accepting property and the job behavior that has been implemented, is being implemented, will be implemented in the future or promised to be implemented. Therefore, after "illegally accepting other people's property", the criminal law adds the element of "seeking benefits for others" to explain this behavior.
Third, the object of commercial bribery crime.
The object of commercial bribery is complex, which not only infringes on the normal operation order of commodity economy, but also infringes on the integrity and incorruptibility of the staff of companies, enterprises or other units in market economy.
Market competition is an economy dominated by fair competition. The purpose of obtaining benefits through commercial bribery will inevitably destroy the fair and just market order by destroying the fair and competitive trading order.
As a member of an enterprise, the staff of a company, enterprise or other unit have the obligation to be honest, strictly abide by the law and discipline, and work hard for the unit while exercising their functions and powers according to the contract, and have the right to receive reasonable and lawful labor remuneration. Authority should not be abused, and it should not be used as a bargaining chip for some people to seek personal gain and corrupt the law. Obviously, bribery has violated the integrity of the staff of companies, enterprises or other units.
Fourthly, the objective aspect of commercial bribery crime.
1. The objective aspect of the crime of commercial bribery is to give property to the staff of companies, enterprises or other units, but it does not include kickbacks and handling fees.
2. The objective aspect of the crime of commercial bribery. It shows that the actor takes advantage of his position to ask for or illegally accept other people's property, and in economic exchanges, he takes advantage of his position to accept kickbacks and handling fees in various names in violation of state regulations, which are owned by individuals.
Verb (abbreviation of verb) matters needing attention
The so-called "taking advantage of his position" means that the actor takes advantage of the convenience of being responsible for, handling or participating in the business of a company, enterprise or other unit, and the actor takes advantage of his position.
1 Whether indirect bribery by employees of companies, enterprises or other units constitutes a crime. The directors and supervisors of a company take advantage of the restrictive relationship formed by their own authority and position that affects the interests of the exploited, and seek benefits for the trustee through the convenience of other people inside or outside the company, which belongs to indirect bribery. The judicial interpretation of this situation has not been clearly defined so far, so according to the principle of legality in criminal law, it cannot be analogized as this crime.
Whether the staff of companies, enterprises or other units should take "taking advantage of their positions" as a necessary condition for accepting bribes. This has been controversial in the criminal law circles in China. I think: as far as bribers are concerned, they can ask for or accept other people's property because their authority or status can have a decisive impact on some needs of bribers; As far as the briber is concerned, the reason why he wants to send property to the actor is because he needs to obtain some benefits through the exercise of power in the hands of the actor. It can be seen that the basis of bribery is that the actor has certain convenience in his position, that is, the essence is the transaction of power and money.
Article 163 of the Criminal Law: Employees of companies, enterprises or other units who take advantage of their positions to extort or illegally accept other people's property and seek benefits for others, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.
Employees of companies, enterprises or other units who take advantage of their positions in economic exchanges and accept kickbacks and service fees in various names in violation of state regulations, which are owned by individuals, shall be punished in accordance with the provisions of the preceding paragraph.
1 Qualitative and Amount Calculation of Indirect Interest Bribery
Indirect interest bribery refers to the fact that the briber pays money and other property, but still does not deliver it directly to the briber, but transforms the money and other property into tangible benefits or qualifications through other carriers. Due to the characteristics of indirectness, turnover, concealment and complexity, it is difficult to determine whether the crime of accepting bribes with interests fully conforms to the "property interests that can be calculated with money" stipulated in the Opinions and how to determine the "actually paid tariffs".
(-) gift certificates. Whether the property benefits such as gift certificates belong to the scope of commercial bribery and how to calculate the amount of bribes should be determined separately according to the situation.
First, we should consider whether the briber gets the property benefits paid by the briber. Part of the property benefits paid by commercial bribers are not completely obtained by bribers, and the missing part cannot be punished as commercial bribery. Although some gift certificates are priced at 1000 yuan on the surface of the carrier, and the briber did pay 1000 yuan to buy the gift certificate, its use is accompanied by certain restrictions, such as not being able to participate in discounts and other preferential activities provided by merchants as a whole. Compared with customers who pay by cash or credit card, they may actually enjoy less than 1000 yuan of goods or services, so they are calculating commercial bribery.
Second, property interests that can determine the market value can be identified as bribery. For example, the market value of gift certificates such as transportation cards and one-card cards is clear and calculable, and the amount of commercial bribery can be directly determined according to the prepaid price in the gift certificates. For gift certificates whose market value is difficult for judicial organs to clearly identify, the author suggests setting up a special organization within judicial administrative organs to calculate the market price of commercial bribery for judicial organs. The introduction of price evaluation mechanism with specialized agencies as the core can not only provide substantive legal and technical guarantee for defendants suspected of commercial bribery crimes, but also provide important reference for judicial organs to identify commercial bribery and calculate the amount of crimes.
Third, we should correctly analyze the essence of equivalence. Small gift certificates given in normal reciprocity should not be regarded as commercial bribery, and the relevant amount should be deducted. However, some actors provide "winning mooncakes" (exquisite mooncake gift boxes preset with luxury gift certificates, imported car gift certificates or high-end hotel consumption cards) to cover up the essence of commercial bribery in the name of celebrating festivals. Because such property interests have gone far beyond the boundaries of reciprocity and holiday gifts, the amount of gift certificates is determined and is completely enjoyed by the briber, which belongs to commercial bribery.
(two) free travel, free decoration, free tuition and other forms of interest support. The Opinions defines free travel as commercial bribery, which does not mean that all expenses related to free travel are recognized as the amount of commercial bribery. First, if the briber pays all the round-trip airfare, hotel accommodation and tickets for tourist attractions, and the briber enjoys tourism services alone, it belongs to all the property benefits obtained by the individual and should be regarded as bribery. Secondly, if the briber accompanies the briber on a trip, if there is no evidence to determine the proportion of the briber's property expenditure in the trip, then the trip cannot be regarded as bribery. If there is evidence that a certain expense in the tour is mainly or completely paid by the briber, it can be regarded as bribery. At present, in practice, bribers and bribers travel together. From the perspective of severely punishing commercial bribery crimes, it is necessary to calculate the amount of bribes by inferring equal travel expenses, but there are obvious flaws in the evidence level. The author advocates that the amount of commercial bribery crime should be calculated according to the service fee actually received by the briber as indicated by the evidence. Third, if family members, mistresses (husbands) and other related parties share the tourism consumption provided by others with the bribe-taker, the consumption amount shared by * * * should be recognized as the property interests enjoyed by the commercial bribe-taker, and all of them should be included in the amount of commercial bribery crime.
(3) sexual bribery. Another major problem facing the special work of punishing commercial bribery crimes is how to deal with sexual bribery. The author thinks that after the Opinions expand the scope of commercial bribery to "property interests that can be calculated with money", judicial organs should use the explanatory function of criminal law itself to solve the practical problems of sexual bribery.
If we make a static literal interpretation, sex itself is non-property and obviously cannot be included in the category of commercial bribery. Although sexual bribery has the characteristics of asking the trustee for money, it has never accepted any money or property benefits for the trustee. However, when we look at sexual bribery from a broader perspective, we can easily find that sexual bribery has the same criminal significance as asking the trustee to fund the trustee, such as free travel. Most of the sexual bribery in judicial practice is that the briber pays others to provide sexual services, so that the trustee can seek benefits for him in the process of power operation. In the whole process of money-sexual bribery-seeking benefits, the essence of power and money trading has not changed at all: the briber pays money and obtains the trading opportunity given by the trustee through his duty behavior; What the briber pays is the help after taking advantage of his position, and what he gets is the sexual service provided by the trustee at the cost of a certain amount of money. It is a typical bribery to ask the client to pay for sexual services instead of asking the client to support the mistress (lover).
In practice, in order to occupy scarce business trading opportunities, female employees in some units get job promotion or high business commission in their own units and take the initiative to throw themselves at each other. Because asking the trustee to pay sexual bribery does not belong to the traditional unfair competition mode of property interests, there is no money to rely on, but an immoral punishment to the body, which is essentially a power-and-money transaction rather than a power-and-money transaction, so it is unfair to intervene in criminal law with commercial bribery crime in the substantive interpretation of legal interests. If the illegitimate interests sought by the trustee or the interests sought by the trustee constitute an economic crime or a crime of dereliction of duty, criminal responsibility can be investigated for other crimes, and criminal responsibility should not be investigated through commercial bribery crimes.
Therefore, the author believes that there is no obstacle to the explanation of sexual bribery in criminal law, and it is difficult to classify it as the object of commercial bribery because it only requires the trustee to provide sexual services for the trustee himself.
2. Identification of the nature and calculation of the amount of expected profit bribery
In practice, there have been a large number of cases in which trustees are given priority to buy goods or provide investment channels at low prices, so that counterparties may profit from them to obtain illegitimate interests. There are great differences in judicial practice, and it is difficult to judge the nature and amount of commercial bribery. After the promulgation of the Opinions, can the provision of expected profits be regarded as commercial bribery? In my opinion, we should be cautious in identifying the bribery nature of expected profits, and we can't identify all expected profits as commercial bribery.
First of all, providing expected profits with commercial risks cannot be regarded as "property interests that can be calculated with money" and does not belong to commercial bribery. For example, by virtue of its keen judgment on the fundamentals of the securities market and its technical analysis ability, the actor hoards a large number of stocks and futures with extremely low market value but large appreciation space and transfers them to commercial trading partners at lower prices, thus providing profit opportunities for them to sell at higher prices in the future. It is also risky for bribers to obtain such economic benefits or avoid property losses, and they need to rely on their own operations. Therefore, high-risk investment and other profit opportunities cannot be regarded as bribery.
Secondly, providing risk-free profit opportunities to bribers should be regarded as "property interests that can be calculated with money" and belong to commercial bribery. Because the risk of profit opportunities is directly controlled and borne by commercial bribers, there is no need for commercial bribers to manage or bear losses. For example, it is profitable to ask the trustee to transfer the real estate he developed to the counterparty at an "internal price" far below the market price (even below the cost), and then sell it for cash. This requires the trustee to take the initiative to make profits or deliberately lose money, which belongs to commercial bribery.
Thirdly, whether the trustee has made the initial investment determines the calculation of the amount of commercial bribery. The realistic realization of expected profit needs a certain initial investment foundation. Some of the winners of expected profits bear their share of initial investment, and the amount of commercial bribery crime can only be limited to the operating income of the profit opportunity. Some winners of expected profits did not make any initial investment at all, and the investment was paid in advance by the trustee. The amount of commercial bribery crime should include the investment part of the trustee and the actual profit part of the trustee.