Starting from the case of Chen Xianming, former deputy secretary and general manager of the Party branch of Chongqing Qijiang District Grain Reserve.
Special guests. He Yongguo, Director of the Eighth Review and Investigation Office of the Qijiang District Commission for Discipline Inspection and Supervision of Chongqing Municipality.
Ning Lin is a cadre of the case trial room of the Qijiang District Commission for Discipline Inspection and Supervision of Chongqing Municipality.
Lv Haibo Deputy Director of the Second Procuratorial Department of the People's Procuratorate of Qijiang District, Chongqing.
Liu Yang is a full-time member of the Adjudication Committee of the Qijiang District People's Court of Chongqing Municipality and the president of the First Criminal Division.
This is a typical case in which a leading cadre of a state-owned company took advantage of his position to collude with others to run a business similar to that of the state-owned company for which he worked, and obtained huge illegal benefits. In this case, Chen Xianming relied on grain to eat grain and relied on enterprises to eat enterprises, what are the characteristics of his violations of discipline and law?The use of old grain to pass off as new grain as city-level reserve grain storage, causing adverse effects, constitutes a violation of discipline or a crime?Chen Xianming, Ao Moumou, and Wang Moumou carried out wheat bran and organic wheat ** business similar to the state-owned company they worked for in the name of a grain and oil company, how should it be determined?We specially invited the staff of relevant units to analyze.
Basic facts of the case: Chen Xianming, male, joined the Communist Party of China in June 1985. He used to be the general manager of Chongqing Grain and Oil Corporation (hereinafter referred to as Chongqing Grain and Oil Corporation), the general manager of Chongqing Grain Group Qijiang District Grain Co., Ltd. (hereinafter referred to as Qijiang Grain Company), and the deputy secretary and general manager of the Party branch of Qijiang District Grain Reserve Company.
Violation of work discipline. In March 2020, Chen Xianming, then general manager of Qijiang Grain Company, in order to pass the acceptance of the task of increasing the storage of municipal grain reserves, the company collectively decided to purchase 1,168 tons of old grain from a grain ** Shangluo instead of new grain as a municipal reserve grain and passed the inspection and acceptance, and in July 2020, Qijiang Grain Company purchased new grain to rotate out the batch of old grain.
The crime of illegally operating the same type of business. From 2009 to 2020, Chen Xianming took advantage of his position as the general manager of the Municipal Grain and Oil Corporation and the general manager of the Qijiang Grain Company to conspire with Ao Moumou, a shareholder of a grain and oil company, and Wang, a businessman, to cooperate in the name of a grain and oil company to operate the same wheat bran and organic wheat business as the state-owned company he worked for, and obtained illegal benefits, the amount of which was particularly huge. Among them, Chen Xianming received more than 4.37 million yuan (the same currency below).
*Crime. From 2015 to 2020, Chen Xianming took advantage of his position as the general manager of Qijiang Grain Company to illegally occupy Qijiang Grain Company for the purpose of illegal possession, and repeatedly colluded with others to obtain a total of more than 1.74 million yuan from Qijiang Grain Company's funds, and he personally received more than 440,000 yuan.
*Crime. From 2011 to 2022, Chen Xianming took advantage of his position to seek benefits for relevant units and individuals in signing grain purchase and sales contracts and paying for goods, and illegally accepted property totaling more than 4.76 million yuan alone or in conjunction with others.
Among them, in July 2014, grain dealer Zhong asked Chen Xianming, then the general manager of Qijiang Grain Company, and Guo, then the director of the production and operation department of Qijiang Grain Company, to use the relevant conditions of Qijiang Grain Company to help him solve the problem of insufficient funds in the process of organic wheat to a wine company, and promised to take out part of the profits in proportion to express his gratitude after the completion of the matter, Chen Xianming and Guo both agreed, and the three of them clarified the proportion of benefits that Zhong gave to Chen Xianming and Guo by signing a written partnership agreement. From 2017 to 2019, Chen Xianming and Guo took advantage of their positions to arrange for Qijiang Grain Company to help Zhong complete the business of organic wheat to a liquor company through collection, storage, and delivery, and Zhong gave Chen Xianming and Guo a total of more than 3.46 million yuan, of which Chen Xianming received more than 1.73 million yuan.
Investigation process: case filing review and investigation] On March 1, 2022, the Qijiang District Commission for Discipline Inspection and Supervision filed a case against Chen Xianming for review and investigation, and with the approval of the Chongqing Municipal Supervision Commission, he was placed in custody on March 3 of the same year. On May 23, 2022, Chen Xianming's retention period was extended for 3 months.
On July 25, 2022, the Qijiang District Supervision Committee transferred the case of Chen Xianming's suspected illegal operation of similar business crimes, ** crimes, and ** crimes to the Qijiang District People's Procuratorate for review and prosecution.
Party Discipline and Government Sanctions] On August 9, 2022, Chen Xianming was expelled from the party and expelled from public office.
On September 9, 2022, the Qijiang District People's Procuratorate filed a public prosecution with the Qijiang District People's Court on suspicion of Chen Xianming's illegal operation of similar business crimes, ** crimes, and ** crimes.
On December 30, 2022, the Qijiang District People's Court convicted Chen Xianming of ** crime in the first instance and sentenced him to seven years and six months in prison and a fine of 500,000 yuan;committed the crime of ** and was sentenced to four years imprisonment and a fine of 250,000 yuan;He was sentenced to two years' imprisonment and a fine of 200,000 yuanHe was sentenced to 12 years imprisonment and fined 950,000 yuan. Chan appealed.
On March 28, 2023, the Chongqing No. 5 Intermediate People's Court ruled to reject the appeal and uphold the original judgment.
1 In this case, Chen Xianming relied on grain to eat grain and relied on enterprises to eat enterprises, what are the characteristics of his violations of discipline and law?The use of old grain to pretend to be new grain in storage, causing adverse effects, constitutes a violation of discipline or a crime?
He Yongguo: In this case, Chen Xianming's violations of discipline and law occurred in multiple links such as grain purchase, storage, transportation, and sales, and specifically had the following characteristics:
First, corruption takes various forms. Chen Xianming has been working in the food system for a long time and is familiar with the characteristics and management loopholes of the food system industry, not only by accepting gifts and gifts from management and service objects, ** accepting bribes, etc., but also by co-operating with others to operate the same kind of business as the state-owned company he works for to obtain huge illegal benefits, and the form of corruption has been renovated. Second, the means of committing the crime are hidden. In order to circumvent the investigation and punishment of the organization, Chen Xianming fortified at all levels, and embezzled the grain purchase and sales contract by inflating the number of transactions or increasing the unit priceSigning a false partnership agreement with the trustee and accepting a huge bribe from the trustee in the name of "dividends".Behind the scenes, operating the same kind of business as the state-owned company in which he works, obtaining huge illegal profits, and so on. Third, there are many people involved in the case. The upper beam was not correct and the lower beam was crooked, and Chen Xianming colluded with many cadres of the Qijiang Grain Company to commit the crime collectively. After investigation, a total of 14 staff members of the company participated in Chen Xianming's violations of discipline and law to varying degrees, which was a typical corruption nest case.
In addition, Chen Xianming's case also reflects the interweaving of disciplinary violations and illegal and criminal acts, and the intersection of civil and criminal acts, and in the process of investigation and handling, it is necessary to accurately characterize the facts of his violations of discipline and law through accurate identification of objective characteristics, subjective motives and other aspects, combined with different evaluation standards for disciplinary and criminal acts.
Ninglin: In March 2020, Chen Xianming violated the rules by deciding to use old grain to pass off as new grain as a municipal reserve grain for warehousing and acceptance, causing adverse effects. At the trial, there was a view that it constituted the crime of abuse of power by personnel of a state-owned company, but we did not adopt this view for the following reasons:
First, Chen Xianming objectively did not cause major losses to national interests. The crime of abuse of power by personnel of a state-owned company is a consequential crime, and only when it causes the bankruptcy or serious losses of the state-owned company, causing major losses to the interests of the state, does it constitute a crime. In this case, Chen Xianming and others objectively obtained a subsidy of more than 10 yuan for increasing storage and custody after passing the acceptance by using old grain to pass the acceptance of new grain, but the subsidy went directly into the account of Qijiang Grain Company and was not out of state control. After that, the Qijiang Grain Company used new grain to rotate out this part of the old grain, and the more than 10 yuan was actually used for the task of increasing grain reserves, and there was no misappropriation or embezzlement, and the national interests did not suffer major losses.
Second, Chen Xianming subjectively did not have the intention of abusing his power. The subjective aspect of the crime of abuse of power by personnel of a state-owned company requires that the perpetrator clearly know that his abuse of power will result in a result that will cause major losses to the interests of the state, and hope or allow such a result to occur. In this case, in order to pass the acceptance of the task of increasing the storage of grain reserves at the municipal level, Chen Xianming decided to temporarily use 1,168 tons of old grain to pretend to be new grain for storage, and after passing the inspection and acceptance, the company purchased new grain in time to rotate out the batch of old grain. After the company's collective study of this behavior and the fact that it was clear that it would replace the old grain with new grain afterwards, Chen Xianming subjectively did not have the intention of hoping or allowing the national interests to suffer losses.
To sum up, Chen Xianming's conduct did not meet the constitutive elements of the crime of abuse of power by personnel of a state-owned company, but Chen Xianming improperly performed his duties in order to pass the acceptance of the task of increasing grain reserves at the municipal level, and replaced the storage time of new grain with part of the old grain for up to four months. According to article 133 of the Regulations on Party Discipline Sanctions, those who fail to perform or incorrectly perform their duties in the course of Party discipline inspection, organization, publicity, united front work, organ work, and other work, causing losses or negative impacts, shall be given sanctions ranging from warnings to expulsion from the Party, depending on the specific circumstances. Therefore, Chen Xianming's conduct should be found to be a violation of work discipline.
2 How should Chen Xianming, Ao Moumou, and Wang Moumou carry out wheat bran and organic wheat ** business in the name of a grain and oil company similar to the state-owned company they work for?
Ninglin: According to Article 29 of the Regulations for the Implementation of the Supervision Law, the Supervision Organs are investigating public employees suspected of favoritism and malpractice, including the crime of illegally operating similar businesses. According to article 165 of the Criminal Law, the crime of illegally operating the same type of business refers to the conduct of a director or manager of a state-owned company or enterprise who takes advantage of his position to operate a business of the same type as the company or enterprise for which he or she works, either by himself or for others, and obtains illegal benefits, where the amount is huge or the amount is particularly huge.
The crime of illegally operating the same type of business requires three conditions in terms of objectivity: First, it operates a business for oneself or for others. This crime may be constituted if one of them is either for oneself or for others, or for oneself and for others. Second, the business operated by oneself or for others belongs to the same type as the business of the company or enterprise for which one works. Otherwise, even if you operate or operate a certain business for others, but this business does not belong to the same type of business as the business of the company or enterprise you work for, it will not constitute this crime. Third, in the process of operating for oneself or for others, one has taken advantage of one's position in the process of operating a similar business to the company or enterprise for which one is employed.
It should be noted that the same type of business in the crime of illegally operating the same type of business refers to the actor's violation of the non-compete obligation to engage in the same type of business as the state-owned company or enterprise for which he or she works, and the following two conditions must be met when making the determination: First, the business scope belongs to the same type of business, and as far as the company that the actor is concurrently engaged in, as long as any part of the business scope belongs to the same category as the actual business scope in the registered business scope of the state-owned company or enterprise for which the actor works, it should be found to be the same type of business. The second is that the form of behavior has a competitive or conflict of interest relationship. In practice, it is usually manifested that the perpetrator takes advantage of his position to facilitate the transfer of business opportunities such as sales and procurement business of the state-owned company or enterprise to the concurrent company, or seeks business opportunities for the concurrently operated company in the name of the state-owned company or enterprise in which he works, causing the competitive relationship between the state-owned company, enterprise and concurrent company in which he works, and harming the interests of the state-owned company or enterprise.
Lv Haibo: In this case, in terms of determining whether or not the business is actually operated. After investigation, Chen Xianming took the initiative to find Ao Moumou and Wang during his tenure in the Municipal Grain and Oil Corporation and Qijiang Grain Company, and proposed that the three of them partner in the name of a grain and oil company to a wine company ** wheat bran and organic wheat to earn profits equally, the two agreed, and the latter three discussed the ** model, division of responsibilities, capital contribution ratio, dividend ratio, risk sharing, etc., and Chen Xianming decided to form a business plan.
In the process of business development, Chen Xianming was responsible for coordinating a grain and oil company to obtain the qualifications and indicators of wheat bran and organic wheat from a wine company, and also discussed with Ao and Wang on major matters in the business process such as the determination of the source of goods, the replacement of the base, the purchase of the base, the certification of the base, the distribution of profits, and the risk sharing, and the final decision was made by him, and Chen Xianming was the main decision-maker in the whole process, while Ao and Wang were responsible for the specific implementation. From the perspective of capital contribution ratio and profit distribution, Chen Xianming took the initiative to pay for the relevant expenses required for operation in the wheat bran and organic wheat ** business of a grain and oil company, and the relevant funds were included in the operating cost accounting, and after deducting the cost of the three people's joint investment in the early stage when calculating the profit, the profit was divided equally according to the agreed plan. In summary, it should be determined that Chen Xianming's genuine investment and actual participation in management throughout the entire business process were actual business activities independent of his position.
He Yongguo: In this case, in terms of determining whether it is a similar type of business. After investigation, between 2009 and 2012, Chen Xianming, then general manager of the Municipal Grain and Oil Corporation, learned about the internal market information of wheat bran purchased by a liquor company through internal channels. Under the circumstance that the Municipal Grain and Oil Corporation has sufficient ability to give wheat bran to a certain liquor company, Chen Xianming, Ao Moumou and Wang conspired to give wheat bran to a liquor company in the name of a grain and oil company, and then under the operation of Chen Xianming and others, a grain and oil company and the Municipal Grain and Oil Corporation evenly distributed the wheat bran index to a liquor company. At the end of 2014, before Chen Xianming was transferred from the Municipal Grain and Oil Corporation, he took advantage of his position to transfer the organic wheat qualification of the Municipal Grain and Oil Corporation to a grain and oil company in violation of regulations, so that a grain and oil company could replace the Municipal Grain and Oil Corporation to a liquor company for organic wheat. In 2015, after Chen Xianming took up his post in Qijiang Grain Company, in order to increase the amount of organic wheat from a grain and oil company to a liquor company, the index of organic wheat from Qijiang Grain Company to a liquor company was reduced in violation of regulations, so that the index of a grain and oil company increased accordingly.
To sum up, Chen Xianming violated the obligation of non-competition and took advantage of his position to transfer the indicators or qualifications of wheat bran and organic wheat from a state-owned company to a certain liquor company to a grain and oil company in violation of regulations, and his conduct damaged the business opportunities and market share of the state-owned company he worked for, and obtained illegal benefits, the amount of which was particularly huge, and his conduct should be found to constitute the crime of illegally operating the same type of business.
3 In the cooperation with Ao Moumou and Wang Moumou to carry out business, whether Chen Xianming's share of more than 4.37 million yuan was the first income from the power and money transaction?The defender proposed that the more than 3.46 million yuan that Chen Xianming and Guo received from Zhong were reasonable profits distributed based on joint operations, not ** income, how do you view this opinion?
Ninglin: During the trial, there was a dispute over whether Chen Xianming's share of more than 4.37 million yuan was in the nature of a power-for-money transaction. After analysis and discussion with the procuratorate, we believe that the more than 4.37 million yuan obtained by Chen Xianming was an illegal benefit obtained by him by taking advantage of his position to operate a business similar to the state-owned company he worked for, and it was not a first-class gain.
* The essence of the crime is the trading of power for money, that is, the perpetrator takes advantage of his position to solicit other people's property, or illegally accepts other people's property to seek benefits for others. In the ** case, the perpetrator only used his position to facilitate the benefit of others and accepted property, and he did not need to actually contribute capital and participate in business management, nor did he need to bear market risks, the model of this crime can be summarized as "power-profit", and the model of the crime of illegal operation of the same type of business can be summarized as "power-operation-profit", and the key to distinguishing between the two is whether there is an intermediate link between power and profit. In this case, Chen Xianming, Ao Moumou and others jointly discussed, jointly contributed, jointly managed, shared risks, and shared benefits, and there was objectively an intermediate link of real business behavior. Chen Xianming subjectively did not have the intention of accepting property from others, but was determined to carry out the business for the purpose of illegally seeking profits, knowing that the business he was engaged in was the same kind as the business operated by the state-owned company he worked for. Based on subjective and objective factors, the more than 4.37 million yuan should be determined to be the criminal proceeds of Chen Xianming's crime of illegally operating the same type of business, and does not constitute **.
Liu Yang: This court does not accept the defender's defense opinion that the more than 3.46 million yuan that Chen Xianming and Guo received from Zhong were reasonable profits distributed based on joint business and were not ** income. After the trial, it was ascertained that although Zhong, Chen Xianming and Guo had reached a written partnership agreement, it was not a real partnership agreement signed for the purpose of joint operation. On the one hand, Chen Xianming and Guo did not actually contribute money to help Zhong complete the business of organic wheat to a certain liquor company, nor did they actually participate in the management and operation, which violated the most basic principles of joint investment, joint operation, sharing of income and sharing of risks in partnership. On the other hand, Chen Xianming and Guo took advantage of their positions to arrange for Qijiang Grain Company to help Zhong complete the business of organic wheat to a liquor company by means of collection, storage, and delivery. In this case, Chen Xianming and Guo X constitute a joint crime, and the two have the same role, and it should be determined that the two are joint criminal acts that do not distinguish between principal and accessory offenders, and according to the general provisions of the Criminal Law on joint crimes, the principle of partial implementation of full responsibility is adopted, and the determination of the amount of joint crime shall be determined according to the joint amount of joint crime in which they participated, organized, or directed. Therefore, Chen Xianming's ** amount of ** facts is more than 3.46 million yuan.
Reporter Fang Yifei, *China Discipline Inspection and Supervision Daily, May 10, 2023.