Political and business \”rotating door\” type of bribery and intentional judicial identification of bribery

Cao Hua Jin Hua Jie

The \”revolving door\” of politics and business is a new type of hidden corruption method. In such cases, state workers seek benefits for their trustees while on the job, and after leaving or retiring, they go to companies run by their trustees and accept huge bribes in the form of high \”settlement allowances\” and \”customized high salaries.\” Since the perpetrator had the status of a state employee during the performance of his duties, but had become a corporate employee when receiving property, his identity changed from \”political\” to \”business\”, so it is called the \”revolving door\” of politics and business.

Because the perpetrator’s acceptance of property occurred after resignation or retirement, this type of behavior is considered bribery after resignation or retirement. According to the 2003 \”National Court TrialArticle 3 of the Minutes of the Symposium on Economic Crime Cases (hereinafter referred to as the 2003 Minutes), and Article 10 of the 2007 \”Opinions of the Two Supreme People\’s Government on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery\” (hereinafter referred to as the 2007 Opinions), Whether the act of accepting bribes after resignation or retirement constitutes the crime of bribery depends on whether the briber and the briber have a \”prior agreement\” on receiving property after resignation or retirement. However, the standard of proof of \”prior agreement\” is high and difficult to obtain evidence. Sometimes the two parties do have a tacit understanding and no agreement. Proving that there is a \”prior agreement\” becomes a difficult issue in handling cases.

Some people believe that the formal requirement of \”prior agreement\” cannot be adhered to in judicial determination. For state workers who are not asked to perform their duties, and there is no \”prior agreement\” during their tenure, they will be based on the basis after resignation or retirement. Anyone who accepts property during the performance of his duties shall be deemed to have the intention to accept bribes and shall be punished for the crime of accepting bribes in accordance with the law. The main reason for this view is that whether there is a \”prior agreement\” is a factor in determining the intention to accept bribes and the relevance of the job. As long as the perpetrator can be determined to have the intention to accept bribes, even if there is no \”advance agreement\” between the briber and the acceptor, it will not affect the crime of accepting bribes. established. Therefore, whether the \”revolving door\” type of political and commercial cases must have the element of \”prior agreement\” to constitute the crime of accepting bribes is basically how to determine the intention to accept bribes in such cases.

1. Justice for intentional bribery in post-resignation and post-retirement bribery Explanation and Discussion

The author does not deny that if there is a \”prior agreement\” between the briber and the briber, the briber can be determined to have the intention to accept bribes. However, it is debatable whether \”prior agreement\” is only related to the determination of intentional bribery. There have been controversies in practice regarding the judgment of intentional bribery when accepting bribes after the fact, especially the conditions for accepting property after resignation or retirement, and the \”two highs\” have also paid attention to this issue.

There was a view in early judicial practice that if a state employee did not accept the request during the performance of his duties and subsequently accepted property based on the performance of his duties, he did not have the intention to accept bribes. This view mainly follows the principle of \”integration of behavior and responsibility\”, that is, the perpetrator must have corresponding subjective guilt while performing objective behavior. If state functionaries fail to accept requests during the performance of their duties, they lack the intention to accept bribes.

The 2016 \”Interpretation of Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery\” (hereinafter referred to as the 2016 Interpretation) issued by the \”Two High and High People\’s Government\” stipulates this issue. According to Article 13 (3) of this judicial interpretation, state functionaries are not asked to perform their duties, but the matterAnyone who accepts the duties of the duties shall be identified as \”seeking benefits for others.\” Regarding this article, the Supreme People\’s Court proposed in the \”Understanding and Application\” on the judicial interpretation that the article was a new rule made by bribery after the incident. However, if they receive their duties, they receive the property of others, as long as the property is associated with its previous job behavior, the behavior of the receiving property also violates the integrity of state staff.

The bribery after the incident includes two situations: one is after the post -employment bribery; the other is the bribery after the departure and after retirement, and the \”rotating door\” of politics and business belongs to this situation. At the age of 2003, Article 3 and 2007 Opinions stipulate that the existence of \”prior agreement\” for after -resignation and retirement after retirement is a necessary element for the establishment of bribery.

In this case, the original intention explained in 2016 and the text of the previous judicial interpretation documents were different. In this regard, the \”Understanding and Application\” explained in 2016 further pointed out that according to the provisions of documents such as previous judicial interpretations, national staff members who resigned and received property after retirement determined that the bribes must be left as the status of the state staff before retirement. It is determined as a condition first. The provisions of this item [that is, Article 13 (3) item] is also subject to this constraint. It cannot be considered that the provisions of this item have been amended the provisions of the previous documents.

According to the revolution of the above -mentioned relevant judicial interpretation, in the aftermath of bribery, if the actor will be bribed after the job, as long as the perpetrators have previously received property, they have the intention to accept the bribery, and then determine the establishment of bribery; In the bribes after departure and after retirement, it is still necessary to use \”agreed in advance\” as the necessary condition. In other words, the reason why the judicial interpretation uses \”in advance\” as an essential element for the crime of bribery after retirement after retirement is not only because of the intentional definition of bribery.

> The intentional expression of the bribery as the consideration of the state staff\’s consideration of the reception of property and asking matters Relationship has cognition. According to this, as long as the national staff\’s post -after -to -afters, the behavior of receiving property is based on previous performances. Regardless of whether the behavior of receiving property occurs after leaving or retired, it usually has a general understanding of the consideration of the two. At this point, bribery after post -employment is the same. Since the bribery after the on -the -job period, the state staff has awareness of the consideration of the two, and after the departure, after retirement, the post -after -toThe same is true of bribe.

In the bribes after departure and after retirement, if the bribery parties have \”agreed in advance\”, the bribery of the state staff intentionally occurs during their job period. Therefore, the intentional basis for the intention to be generated by the state staff is the legitimate basis for \”agreed in advance\”. In fact, this understanding is constructed in accordance with the basic law of bribery.

The mainstream point of view believes that the reason why certain actions are specified as criminal behavior through criminal legislation, the basis for its illegality is the infringement of the legal and benefits, and In addition to the infringement of legal and interest, it also includes the subject of the perpetrator. This is because whether the actor has the main identity of the state staff and their behavior that can violate the integrity of national staff is closely linked. If the actor does not have the status of the state staff, the integrity of the state staff lacks the foundation. The crime of bribery as the core crime of corruption and bribery also meets the characteristics.

It is necessary to pay attention to the special situation of the subject identity in the crime of bribery, that is, although they do not have the status of state staff, the responsibilities of their performance are engaged in official nature. In fact, this situation also follows the characteristics of the illegal basis of the subject identity. Because in this situation, the responsibility of the perpetrator\’s official duties also comes from the positions they hold, and even if the form is not a state staff, it is no exception. If the perpetrator does not hold the position, it is impossible to assume the duties of official duties, and the integrity and benefits of national staff will not be able to talk about it. In practice, the judicial organs need to review the appointment and job responsibilities of the actor\’s appointment and job responsibilities for such cases.

According to the principle of the illegal basis of bribery in the subject of the subject, it has a guidance in the judicial identification link. According to the theoretical system of criminal theory, criminal behavior is an illegal type. The behavior of its behavior needs to meet the elements of constituent elements in form, and at the same time, it also needs to reflect the basis of illegality. This principle is specific to the identification of the bribery, which is manifested as the intentional and behavioral of the actor\’s bribery and the behavior that must occur during the duration of the subject. Otherwise, although its behavior and intention have formal elements, there is a lack of illegal basis for the substantive level. It is also questionable whether it has the integrity of national staff\’s integrity. At the same time, from the perspective of constituent elements, the crime of bribery as a criminal, and the behavior and intentional behavior of the actor (the offender) should be produced during the period of status. Of course, the behavior of bribery is usually composed of two parts of profit and money collection, and the behavior of collecting wealth may have multiple and continuous characteristics. In this case, as long as the actor part is implemented during the duration of the subject, and its bribery is intentionally generated during the duration of the main body, its behavior and intentional have illegal basis, and it also meets the characteristics of identity.

The corresponding judicial interpretation provisions also reflect this conclusion. For example, after the on -the -job period, bribes only need to determine that the perpetrator can be constructed based on the previous cause, without any otherThe limiting condition is that in this case the actor\’s intention and behavior to accept bribes all occurred during the period of the subject\’s identity. For another example, the 2007 Opinion stipulates that if a state employee takes advantage of his position to seek benefits for his client and continuously accepts property from his client before and after leaving his job, the portion received before and after leaving his job should be included in the amount of bribes accepted. Because in this case, the perpetrator has already carried out profit-seeking behavior and part of the money-collecting behavior during his employment, and the intention to accept bribes also occurred during his employment. Because his intention and behavior are based on illegality, the money received after leaving office can be included in the amount of bribery.

Based on the above principles, the reason why ex-post bribery after resignation or retirement requires the crime of \”pre-agreement\” is not only because this element is an important content in defining the intention to accept bribes, but also because it is an important element in defining the intention to accept bribes. Whether the intention to accept bribes occurs during the existence of the subject\’s identity is a key factor. In this case, the actor\’s profit-seeking behavior and money-collecting behavior occurred before and after leaving the company. The key to whether the crime of bribery is established lies in whether the intention to accept bribes occurred during the period of the subject\’s identity. If there is no \”prior agreement\” between the bribe-giving and accepting parties, it is difficult to determine that the bribe-taking occurred intentionally during the period of employment, and therefore does not constitute the crime of bribe-taking. This is an important reason why relevant judicial interpretations stipulate \”prior agreement\” as a condition for the crime of accepting bribes after resignation or retirement.

3. Bribery-taking occurs intentionally in political and commercial \”revolving door\” bribery crimes Determination of time

In practice, the determination of \”pre-agreement\” usually relies on the verbal evidence of both the briber and the briber, which is difficult to determine. This is also an important reason for theoretically advocating a breakthrough in \”prior agreement\” in political and commercial \”revolving door\” cases. reason. In the process of identifying such bribery cases, judicial organs must grasp the spirit of judicial interpretations and dialectically view the provisions of \”prior agreement\” in judicial interpretations. Judicial interpretation is an interpretation of the law. Although its provisions can reveal part of the content of the law, it cannot be equivalent to the entire content of the law. Specific to the issue of \”prior agreement\”, it should be understood as follows: \”prior agreement\” is an element that defines bribery intentionally occurring during the existence of the subject\’s identity. However, the elements that define bribery intentionally occurring during the entity\’s identity are not limited to judicial interpretations. \”prior agreement\”.

\”Revolving door\” bribery in politics and business is a type of intentional ex post facto after resignation or retirement. It is necessary to focus on examining whether the intentional bribery occurred during the existence of the subject\’s identity, in addition to the \”prior agreement\” stipulated in the judicial interpretation. , the following two situations can also be used as the basis for judgment: first, there is a request for entrustment during the performance of duties; second, there is no justifiable reason for leaving the job early,Retired. In both cases, it can be presumed that the perpetrator\’s bribery intentionally occurred during his employment. Regarding the first situation, nowadays, when requesting help from state staff, the client usually does not promise to provide benefits on the spot, but both parties often have a tacit understanding of the transfer of benefits. Therefore, the judicial authority can infer that the state functionary should know that the client may pay favors later based on the performance of his duties, and then determine that the bribery intentionally occurred during his employment. As long as a state employee actually accepts benefits after resigning or retiring, the crime of accepting bribes can be constituted. The second scenario combines common sense with the unique approach of the political and business “revolving door”. In practice, state workers involved in \”revolving door\” bribery cases in politics and business usually leave their jobs early, retire, and go to companies run by their trustees to receive high settling-in allowances and customized high salaries. According to common sense, if a state employee leaves or retires early without justifiable reasons, even if there is no documented evidence to prove that the state employee and the client have an agreement on accepting bribes after retiring or retiring, it can be determined that the bribery occurred intentionally during the period of employment.

　 (Author’s unit: People’s Procuratorate of Minhang District, Shanghai)