Judicial Determination of Intentional Acceptance of Indictment in the \”Rotation of the Door\” Type of Abuse of Being accused by the Government and Business

【Source: Shanghai Municipal Bureau of Inspection and Inspection】

The \”turning door\” of government and business is a new and indiscriminate corruption method. In this case, domestic staff received huge amounts of money in the form of high \”safety fees\” and \”customized high salaries\” in the form of high \”safety fees\” and \”customized high salaries\” in the form of \”safety fees\” and \”customized high salaries\” in the business in which they left their posts and retired. Since the actor has the status of a national staff member during his or her tenure, he has become an out-of-the-school employee when accepting property, and his identity has changed from \”politics\” to \”business\”, hence it is called the \”turning door\” of government and business.

Because the act of the act accepting property after the person has resigned from his job or retired, this act belongs to the resigned from his job or retired. According to Article 3 of the National Court Review of Economic Crime Cases in 2003 (hereinafter referred to as the 2003 Crime Notes) and the \”Two Highs\” of 2007 \”Opinions on Applicable Laws in the Handling of Criminal Cases of Acceptance of Criminal Appropriate Laws If Exploitment\” (hereinafter referred to as the 2007 Comments ) Article 10 stipulates whether the act of accepting money after quitting or receiving money after retirement is a crime of accepting money, and whether the two parties who accept the money have a \”pre-arrangement\” regarding the acceptance of money after quitting or retirement is determined. However, the \”pre-arrangement\” certificate has high standards and is difficult to obtain. Sometimes both parties are tacit and have no agreements, and proof of \”pre-arrangement\” has become a difficult problem in the case.

There is some opinion that judicial determination cannot be bound by the formal requirements of \”pre-arrangement\”. For the fact that national staff are not entrusted when performing their duties, there is no \”pre-arrangement\” during the term of office. After leaving or retirement If you accept property based on the performance of your duties, you shall be determined to have the intention to receive the money and make a crime for receiving the money according to law. The main reason for this view is that whether there is a \”pre-arrangement\” is a verdict that is related to the intention of accruing and the duty. It is necessary to be able to determine that the activist has the intention of accruing. Even if the two parties who commit the claim do not have accruing, it will not affect the crime of accruing. Established. Therefore, whether the crime of acquiring accusation must have the element of \”pre-arrangement\” in the case of \”turning the door\” in government and business must be \”pre-arranged\”? It is fundamentally how to determine the intention of accusation in such cases.

1. Judicial explanation and discussion on intentional judicial interpretation of the accused after resignation

The author does not deny it. If the two parties who receive the accused have \”pre-arranged\” situation, they can confirm it. The recipient has intention to receive the claim. However, it is worth discussing whether \”pre-arrangement\” is only related to intentional determination of the accusation. There have been actual disputes over the intentional judgment of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being ac

The early judicial practices believed that if a national staff member did not accept the request during the performance of his duties, and then accepted the property based on the reason for the performance of his duties, he did not have the intention to receive the money. This view mainly follows the principle of \”behavior and responsibility\”, that is, the acter must have corresponding subjective crimes when performing guest behavior. If a national staff fails to accept the request during the performance of their duties, it is a lack of intention to receive the claim.

The \”Two Highs\” of 2016 \”About the Handling of Defiled DisclaimerThe Interpretation of Applicable Laws in Criminal Cases If Exploring Regulations\” (hereinafter referred to as the 2016 Interpretation) stipulates the issue. According to Article 13 (III) of the Judicial Interpretation, if a national staff member is not requested to perform his duties, but accepts other people\’s property based on the reasons for the performance of his duties, he shall be considered \”to benefit others.\” Regarding this article, the Supreme People\’s Court proposed in the \”Understanding and Applicability\” on the judicial interpretation that the article is a new provision for the subsequent receipt, and there was no intention to receive the claim when performing the duties, and the two parties did not communicate with each other about the request to entrust the matter. However, if you collect other people\’s property after performing your duties, you must have the acceptance of the property related to your previous career behavior, and your acceptance of the property also violates the integrity of the national staff.

After receiving a deposit, there are two situations: one is that he is given a deposit after the work period; the other is that he is given a deposit after the work period and retirement, and the \”turning door\” of government and business is considered to be such a situation. Article 3 of the 2003 Registration and Article 10 of the 2007 Opinions both stipulate that \”pre-arrangement\” is a necessary requirement for the crime of accepting accusation for resignation.

In this case, the original meaning of the interpretation in 2016 is different from the text of the previous judicial interpretation document. In this regard, the 2016 interpretation of \”Understanding and Applicability\” further pointed out that according to the provisions of previous judicial interpretation and other documents, national staff members accept property after leaving their posts and retirement, and believe that the recipient must have something to do during the period of existence as a national staff member before retirement. Make a reservation first. This regulation [i.e. Article 13, Article (3)] is also subject to this constraint and cannot be recognized as modifying the provisions of the previous documents.

From the above-mentioned related judicial interpretations, if the person who is admitted after the repute is granted after the repute during the repute, the person who is required to accept property based on the previous performance of his duties, that is, he has the intention to receive repute and then is determined to be a crime of repute. ; And when you are granted after resignation or retirement, \”pre-arrangement\” is still necessary. In other words, the reason why judicial interpretations regard \”pre-arrangement\” as a necessary requirement for crimes of vacancies after resignation and retirement is not only because of intentional definition of the accusation.

2. Generally, the determination of the time of intentional arising of accruals

The content of intentional accruals is expressed as national staff who have aware of the price relationship between accepting property and entrustment. Therefore, the subsequent acceptance of property by a national staff is based on previous performance of duties. Whether the acceptance of property occurs after quitting or retirement, there is usually a general understanding of the price relationship between the two. At this point, the claim after the term is no different from the claim after leaving the position and after retirement. Since the domestic staff are granted after the service, they have aware of the price relationship between the two, and the same is true for the remuneration after leaving the job and retirement.

In the case of a post-divorce or retirement after resignation, if the two parties to the bank have a \”pre-arrangement\”, the accrual of a national staff member will intentionally arise during his or her tenure. Therefore, the intentional accrual must be generated by the national staff during the term of office.The justification of \”determination\” is based on. In fact, this understanding is in line with the basic legal concept of guilt.

The mainstream view believes that the reason why certain specific behaviors are specified as criminal acts through criminal legislation is that The basis of illegality is the infringement of legal interests, while the illegality of professional crimes such as defilement and deduction crimes include not only the infringement of legal interests, but also the subjective identity of the actor. This is because whether the actor has a national staff member. The subjective identity and the legal interests of their actions that can infringe on the integrity of national staff. If the actor does not have the identity of national staff, the legal interests of national staff are lacking in the foundation. The crime of being accused of being defiled or owed The core crime also meets this characteristic.

What needs to be paid attention to here is the special circumstances of the subject identity in the crime of being accused of being accused of, that is, although they do not have the status of a national staff member, the duties they perform are of the nature of public service. In fact, it is a characteristic of legality that follows the subjective identity. Because in this case, the person\’s duties in business also come from the duties he or she holds, even if the job is not a national staff member in form. No exception. If the acter does not assume the position, it is impossible for him to assume the responsibility of his duties in office, and the legal interests of the integrity of the national staff cannot be discussed. In fact, judicial authorities need to focus on reviewing the act of the acter in this type of case. , the responsibility of the position is also for this reason.

According to the principle of the main identity, the law of crime of being accused of being accused of being accused of being accused of being a guided person in the judicial recognition circle. According to the theoretical system of criminal theory, criminal acts are a type of illegality, and Acts need to meet the elements of the constituent elements in form, and at the same time, they also need to be physically illegal. This principle is specifically considered as the crime of accusation of accusation, that is, the intention and behavior of the person who is accused of accusation must occur during the period of the subject\’s identity. . Otherwise, although its behavior and intentionality have formal elements, the lack of legality in the actual level is based on whether it has the injustice of legal interests of national staff. At the same time, from the perspective of conformity of the structural requirements, the stake is received. As a crime committed by identity, the act and intention of the perpetrator (acting offender) shall arise during the period of identity existence. Of course, the act of gaining is usually composed of two parts of the act of making profits and receiving wealth, and the act of receiving wealth may have multiple and continuous Characteristics. In this case, some behaviors of the person who is to behave are performed during the period of the subject\’s identity, and the intentional accusation also arises during the period of the subject\’s identity. Their behavior and intentionality are based on the law and are in line with the characteristics of the crime committed by the identity .

The relevant judicial interpretation also shows this conclusion. For example, if you receive a claim after a term, you only need to be determined that the acter can commit a crime by accepting property based on previous reasons, without any other limited conditions, that is, Because the intentional and behavior of the perpetrator in this situation occurred during the period of the subject\’s identity. For example, in 2007, the opinions stipulated that national staff use their job convenience to seek benefits for the trustee, and continue to accept the trustee before and after leaving the job. For property, the amount of receipt shall be counted in before and after leaving the job.Because in this case, the actor has already implemented profit-taking behaviors, part of his income during his tenure, and the intention of receiving the money also arises during his tenure. Because their intention and behavior are illegal, the money received after leaving the job can be counted into the amount of the receipt.

According to the above principle, the reason why the after-retirement of abdication after resignation needs to be provided with the criminal requirement of \”pre-arrangement\” is not only because this element is an important part of defining the intention of receiving abdication, but also because it is Key factors that define whether the intention of accusation arises during the continuation of the subject\’s identity. In this case, the act of profit and wealth taking place respectively occurs before and after the resignation. The key to whether the crime of accusation is whether the intention of the accusation occurs during the period of the subject\’s identity. If the two parties who commit the claim do not have a \”pre-arrangement\”, it is difficult to believe that the claim is intentionally generated during the period of duty, and therefore does not constitute the claim. This is an important reason for the relevant judicial interpretation of the criminal conditions for \”pre-arrangement\” to be granted after resignation and retirement.

3. Determination of the time of intentional occurrence of accusation in the \”turning door\” type of accusation of accusation

In fact, the determination of \”pre-arrangement\” is usually based on the verbal evidence of the two parties receiving the award. The difficulty of the above is greater, which is also an important reason why theoretically proactively breaks through \”pre-arrangement\” in cases of political and business \”turning doors\”. In the process of identifying such cases of claim, the judicial authorities must grasp the spirit of judicial interpretation and identify the provisions of judicial interpretation on \”pre-arrangement\”. A judicial interpretation is an explanation of the law. Its regulations can certainly reveal part of the content of the law, but it cannot be equivalent to the entire content of the law. For the problem of \”pre-arrangement\”, it should be understood as follows: \”pre-arrangement\” is an element that defines the intentional occurrence of the subject identity during the period of the subject\’s identity. However, the element that defines the intentional occurrence of the subject\’s identity during the period of the subject\’s identity is not only limited to judicial interpretation regulations. \”Pre-arrangement\”.

The \”turning door\” type of accusation of accusation of accusation of accusation of accusation of accusation of accusation after quitting or retirement should be examined carefully whether theccusation of accusation occurred during the period of the subject\’s identity, except for the \”pre-arrangement\” stipulated in the judicial interpretation. In addition, the following two situations can also be used as a basis for judgment: one is that there is a request during the performance of the job; the other is that you leave or retire in advance without justification. Both of these situations can be presumed that the acter\’s accusation was intentionally generated during the period of his or her life. Regarding the first case, the entrustor will not usually promise a favor fee on the spot when asking the national staff to help, but both parties often tacitly regarding the transfer of interests. Therefore, the judicial authority may presume that the national staff should know that the trustee may pay favors based on the performance of the job, and then determine that the accrual was intentionally arising during the service period. If a domestic staff member wants to receive a favorable fee after retirement, he or she can be convicted of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being accused of being a The second situation is combined with common sense and the unique method of \”turning the door\” of government and business. In fact, domestic staff in \”turning door\” type of government and business accrual cases usually leave and retire early, and go to the companies they hire to hire to receive high security fees and customized high salaries. according toIt is common sense that if a national staff member leaves or retires in advance without justifiable reasons, even if there is no evidence in the case, it can be proved that the national staff and the trustee have agreed on receiving the money after resignation and retirement, it can also be concluded that the money was intentionally generated during the working period.

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