Tofeastinthenamegiftsofgold,itisagiftorbribe?

2020-02-29 07:14:38作者:admin来源:未知

  To "feast" in the name gifts of gold, it is a gift or bribe? Case Review

   to "feast" in the name gifts of gold, is a gift or bribe?Wang typical case, the Department of Shipping Transport Company Limited Legal Representative X.Obtain bank loans will be approved procedure, before the 2008 to 2008 Dragon Boat Festival, Mid-Autumn Festival, Spring Festival, Wang gave a branch of Commercial Bank of China Credit Management Division General Manager Lee a total of 30,000 yuan in cash.Specifically described as follows: before the 2007 Spring Festival, the Dragon Boat Festival, Mid-Autumn Festival, Wang Lee were sent home cash of RMB 0 in the cell door Lee.5 million, totaling 1.50,000 yuan; 2008 Spring Festival, the Dragon Boat Festival, Mid-Autumn Festival, Wang Lee gave cash of RMB 0 respectively in the cell door Lee residence.5 million, totaling 1.50,000 yuan.September 7, 2006 to December 1, 2009, ICBC A sub-branch of the X-linked shipping company owner to lend a total of about 30 million yuan, the loan approval artificially Lee.In April 2020, the local supervisory authority to initiate an investigation, Wang suspected of bribery.Question: Wangs conduct constitutes bribery?Point one: giving the amount of Wang Lees behavior in 2007, a year before the 2008 Spring Festival, the Dragon Boat Festival, Mid-Autumn Festival, which is an important festival of human contact, but every time Wang give money in 5000 yuan , bribery prosecution did not meet standards.So, Wangs behavior should be understood as human exchanges of gifts, do not constitute bribery.Second point: Wang giving the order to successfully obtain bank loans Lee, belong to seek unfair competitive advantage through loan approval procedures, although the amount of money to a single prosecution did not meet the standard of bribery, but the cumulative amount reached the prosecution standards, should the crime of bribery be held criminally responsible.Comment Comments: I agree with the second view.According to relevant provisions of the criminal law, to seek illegitimate interests, and national staff to property, it is bribery.In this case, Wang order to successfully obtain bank loans through the loan approval process and giving the Lee, that fact is not in dispute.Focus of the case is that in the case of Wang important nodes of giving the human contacts Lee, a single standard amounts have not reached the prosecution of bribery, Wangs behavior is a gift or bribe?1.The boundaries of bribery and gifts.Limit "on the handling of criminal cases of commercial bribery law applicable Opinions on Several Issues", handling commercial bribery cases, to distinguish between bribes and gifts according to the Supreme Peoples Procuratorate.The main should be combined with the following factors comprehensive analysis, comprehensive judgment: Background property transactions occur, such as whether the two sides there is a case and the degree of interaction on family relations and history; the value of exchanges of property; property dealings reason, the timing and manner of providing property party for if asked whether the positions on the recipient; the recipient whether taking advantage of his position to seek benefits provider.2.Giving the Wang Lee, not based on human contact but something Xiangqiu.In this case, the relationship between Wang and Lee are not friends, but business loans and lending relationships.Wang Lee giving the conduct occurred in 2007, 2008 annual Spring Festival, the Dragon Boat Festival, Mid-Autumn Festival, and from 2006 September 7 to December 2009 1 May, ICBC A sub-branch of the ship anchored in X the companys lending business owner, this time there are two coincide, and that the approval of the loan by Lee.Wang on subjective purpose, its purpose is to give money to Lee to give care at the time of loan approval, successfully obtain bank loans through the loan approval procedures, that is to say, Wang has the trust of his office for Lee.So, Wang Lee giving the act, not based on human contact but something Xiangqiu, a bribery.3.Wangs behavior reached the prosecution of bribery standards.According to the Supreme Peoples Procuratorate "explanation on the handling of criminal cases of corruption and bribery law applicable to a number of issues", to seek illegitimate interests, bribery to national staff, the amount of $$ 30,000 or more, shall be in accordance with the criminal law three hundred and ninetieth 40 of the provisions of the crime of bribery be held criminally responsible.In this case, if a single look bribery Wang, have not reached the standard bribery prosecution.But Wang, the cumulative amount of money to $$ 30,000 has reached the standard bribery prosecution.Then for Wangs behavior, it should be in accordance with the amount of money to a single or a cumulative amount of qualitative characterization of it?According to the Supreme Peoples Procuratorate "Interpretations on bribery criminal cases, the specific application of Laws" Article 5 times bribery untreated, according to the cumulative amount of bribery penalties.In this case, the total amount of money to $$ 30,000 Wang reached the standard bribery prosecution, therefore, should be held criminally responsible bribery.Knowledge Point: 1.Article 389 "Peoples Republic of China Criminal Law": "to seek illegitimate interests, and national staff to property, is bribery.In economic activities, in violation of state regulations for national staff to property, the larger the amount, or in violation of state regulations by giving rebates to national staff in various names, service charges of bribe punished.Because being extorted to give state property, not to obtain illegitimate interests, not bribery." 2.Supreme Peoples Court, Supreme Peoples Procuratorate "on the handling of criminal cases of bribery specific application of law to explain a number of issues," Article V: "multiple bribery untreated, according to the cumulative amount of bribery penalties."

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