Original title: How to deal with the implementation of the Criminal Law Amendment (12) - Opportunities and Challenges for the Defense of Private Enterprise Operators.
The author of this article is Zang Desheng
The Criminal Law Amendment (12) [hereinafter referred to as the "Amendment (12)"] passed on December 29, 2023 will come into force on March 1, 2024. The revision of the Criminal Law will have a significant impact on the operators of private enterprises. Criminal defense lawyers need to pay close attention to the new changes brought about by the Amendment (12) and actively respond to them, so as to handle relevant cases well and achieve good defense results.
1. It is necessary to pay attention to new types of crimes
In line with the original intention of increasing the protection of private enterprises, the current revision of the Criminal Law adds the crime of corruption among the internal personnel of private enterprises, and expands the crime that was originally only applicable to state-owned companies and enterprises to private companies and enterprises, involving three articles and three crimes.
The first is the crime of illegally operating the same type of business.
Add a paragraph to Criminal Law article 165 as the second paragraph, and amend that article to read:
Where directors, supervisors, or senior managers of state-owned companies or enterprises take advantage of their positions to operate their own business or for others in the same kind of business as the company or enterprise they work for, and obtain illegal benefits, and the amount is huge, they are to be sentenced to up to three years imprisonment or short-term detention and/or a fine; where the amount involved is especially huge, the sentence is between three and seven years imprisonment and a concurrent fine.
Where directors, supervisors, or senior managers of other companies or enterprises violate the provisions of laws or administrative regulations by carrying out the conduct described in the preceding paragraph, causing major losses to the interests of the company or enterprise, punishment is to be given in accordance with the provisions of the preceding paragraph. (New content in blue).
Accordingly, directors, supervisors, and senior executives of private companies and enterprises can constitute the crime of illegally operating the same type of business, but there are two differences between the elements of this crime and that of personnel of state-owned companies. The first is to "violate laws and administrative regulations", and the second is to "cause major losses to the interests of the company and enterprises".
The second is about the crime of making profits for relatives and friends.
Add a paragraph to Criminal Law article 166 as the second paragraph, and amend that article to read:
In any of the following circumstances, where the staff of a state-owned company, enterprise, or public institution takes advantage of their position to cause major losses to national interests, they are to be sentenced to up to three years imprisonment or short-term detention and/or a fine; and where the interests of the state suffer especially heavy losses, a sentence of between three and seven years imprisonment and a concurrent fine is to be given
1) Leaving the profit-making business of the unit to their relatives and friends to operate;
2) Purchasing goods or receiving services from units operated and managed by one's relatives and friends at a rate significantly higher than the market, or selling goods or providing services to units operated and managed by one's relatives and friends at a rate significantly lower than the market;
3) Purchasing or accepting substandard goods or services from units operated and managed by one's relatives and friends.
Where the staff of other companies or enterprises violate the provisions of laws or administrative regulations by carrying out the conduct described in the preceding paragraph, causing major losses to the interests of the company or enterprise, punishment is to be given in accordance with the provisions of the preceding paragraph. (New content in blue).
Accordingly, the scope of the subject of this crime constituted by the personnel of private companies and enterprises is relatively large, and it is not limited to directors, supervisors, and senior executives, but also relevant staff.
The third is the crime of favoritism and fraud in discounting shares at low prices, and the crime of ** company and enterprise assets.
Add a paragraph to Criminal Law article 169 as the second paragraph, and amend that article to read:
Where a person in charge directly responsible for a state-owned company or enterprise or the competent department at a higher level commits favoritism or irregularities by converting state-owned assets into shares at a low price or at a low price, causing major losses to national interests, he shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention; and where the interests of the state are particularly seriously harmed, a sentence of between three and seven years imprisonment is to be given.
Where the directly responsible managers of other companies or enterprises engage in favoritism and malpractice by converting the company's or enterprise's assets into shares at a low price or at a low price, causing major losses to the company's or enterprise's interests, they shall be punished in accordance with the provisions of the preceding paragraph. (New content in blue).
The main requirement to constitute this crime is that of the person directly responsible for the charge, and the focus is on the duties of the perpetrator rather than his identity.
There are two issues that need to be grasped in the revision of these three provisions:
First, there is a correct understanding of the statutory penalties for new crimes. The additional clauses of the three articles are all stated as follows: "Where the interests of the company or enterprise suffer major losses, punishment shall be imposed in accordance with the provisions of the preceding paragraph." The "preceding paragraph" provides for two levels of statutory punishment, including two sentencing ranges corresponding to major losses (huge amounts) and especially heavy losses (especially huge amounts). The second paragraph added by the Amendment (12) only expresses "major losses" when invoking the statutory penalty in the first paragraph, but if "particularly serious losses" are reached, the second level of statutory punishment shall be applied.
The second is the issue of the retroactivity of new crimes. After the "Amendment (12)", how to determine the corresponding crimes, whether they are unified into one crime according to state-owned units and private units, or whether the charges are determined separately, needs to be further clarified by the highest judicial organ. However, regardless of how the offence is determined, the new content of the Amendment (12) only applies to offences committed after 1 March 2024.
2. Pay attention to the legislative spirit of strictly addressing the crime of bribery
In September 2021, the ** Commission for Discipline Inspection and the State Supervision Commission, the **Organization Department, the ** Ministry, the ** Political and Legal Committee, the Supreme People's Court, and the Supreme People's Procuratorate jointly issued the "Opinions on Further Promoting the Joint Investigation of Bribery", making arrangements for further promoting the joint investigation of bribery. Intensifying the crackdown on the crime of offering bribes has become an important part of the current revision of the Criminal Law. Article 5 of the "Amendment (12)": Amend Article 390 of the Criminal Law to read:
Those who commit the crime of offering bribes shall be punishedThree(5) Up to one year imprisonment or short-term detention and a concurrent fine; Where bribery is used to obtain improper benefits, and the circumstances are serious, or where the interests of the state suffer major losses, punishment is to be givenThree(5) Between 10 and 10 years imprisonment and a concurrent fine; where the circumstances are especially serious, or cause especially heavy harm to national interests, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property.
In any of the following circumstances, a heavier punishment is given:
1) Repeatedly offering bribes or offering bribes to multiple people;
2) State employees offering bribes;
3) Offering bribes in key national projects or major projects;
4) Offering bribes for the purpose of seeking promotions or adjustments to positions, ranks, or grades;
5) Offering bribes to supervision, administrative law enforcement, or judicial personnel;
6) Offering bribes or carrying out illegal or criminal activities in areas such as ecology and the environment, finance, production safety, food and drugs, disaster prevention and relief, social security, education, and medical care;
7) Using unlawful gains for bribery.
Where the bribe giver voluntarily confesses the bribery before being prosecuted, the punishment may be mitigated or commuted. Of these, where the crime is relatively minor, where it plays a key role in the investigation of a major case, or where there is a major meritorious service, punishment may be commuted or waived.
This revision has brought both opportunities and challenges to the defense work, and criminal defense lawyers need to accurately understand the content of the revision and carry out defense work according to the facts of the case.
First, make good use of the adjustment of the statutory penalty for the crime of bribery.
Amendment (12) adjusts the statutory penalty for the crime of offering bribes, changing the original five-year node to three years, that is, the first level is changed from less than five years to less than three years, and the second level is changed from five to ten years to three to ten years. This adjustment makes the crime of bribery first.
The sentencing range of the first and second levels has been lighter overall. According to the principle of leniency and leniency, for some cases, even if they occur before March 1, 2024, as long as the judgment is made after March 1, the statutory sentence under the new law can still be applied. In particular, for cases where the second sentencing range is applied, the effect is obvious, because with a range of three years to less than ten years, a lenient punishment can lead to a sentence of three years imprisonment, and there is a possibility that a suspended sentence may be announced.
If such a case is currently pending in court, the defense lawyer needs to delay the progress of the process and strive for a verdict after March 1 to give more chances of a lighter sentence and a suspended sentence. Because if the case is decided before March 1, the provisions of Amendment (12) cannot be applied.
Second, actively respond to aggravating circumstances.
Amendment (12) adds provisions on heavier punishments, listing seven aggravating circumstances, which are unfavorable circumstances for the defendant and need to be dealt with by defense lawyers. Specifically:
The first is to adhere to the principle of starting with the old and lightening it, the new aggravating circumstances cannot be applied to criminal cases that occurred before March 1, 2024.
The second is to avoid repeated evaluations of aggravating circumstances. The seven aggravating circumstances provided for in the Amendment (12) have overlapping and competing circumstances, and multiple applications of the same circumstance should be avoided.
The third is to properly handle the relationship between the standards for conviction and sentencing and the circumstances of heavier punishments. The "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery" stipulates the circumstances under which the standard for the crime of offering bribes is reduced.
Article 7: Where bribes are offered to state employees for the purpose of seeking improper benefits, and the amount is 30,000 yuan or more, criminal responsibility shall be pursued for the crime of bribery in accordance with article 390 of the Criminal Law.
In any of the following circumstances, where the amount of bribes offered is between 10,000 and 30,000 RMB, criminal responsibility shall be pursued for the crime of offering bribes in accordance with the provisions of Criminal Law article 390:
1) Offering bribes to three or more persons;
2) Using unlawful gains for bribery;
3) Seeking promotions or adjustments through bribery;
4) Offering bribes to state employees with oversight and management duties such as for food, drugs, production safety, and environmental protection, or carrying out illegal activities;
5) Offering bribes to judicial personnel, impacting judicial fairness;
6) The amount of economic losses caused is between 500,000 and 1,000,000 RMB.
Article 8: In any of the following circumstances, the crime of offering bribes shall be found to be 'serious circumstances' as provided for in the first paragraph of Criminal Law article 390:
1) The amount of bribes offered is between 1,000,000,000 and 5,000,000 RMB;
2) The amount of bribes offered is between 500,000 and 1,000,000 RMB, and has any of the circumstances provided for in items (1) through (5) of paragraph 2 of article 7 of this interpretation;
3) Other serious circumstances.
Article 9: In any of the following circumstances, the crime of offering bribes shall be found to be "especially serious circumstances" as provided for in the first paragraph of Criminal Law article 390:
1) The amount of bribes offered is 5 million RMB or more;
2) The amount of bribes offered is between 2,500,000 and 5,000,000 RMB, and has any of the circumstances provided for in items (1) through (5) of paragraph 2 of article 7 of this interpretation;
3) Other particularly serious circumstances.
According to this provision, in the six circumstances provided for in the judicial interpretation, the standard for the amount of criminalization and file promotion is reduced. However, the six circumstances provided for in the judicial interpretation overlap and compete with the seven circumstances provided for in the Amendment (12). If a certain circumstance has already been reflected in the standard for the amount of conviction and sentencing, it can no longer be used as a circumstance for aggravating punishment to avoid repeated evaluations.
Third, accurately identify the special leniency circumstances for the crime of offering bribes.
The bribe giver voluntarily confesses the bribery before being prosecuted, which is a special lenient circumstance for the crime of bribery, which is relatively common in practice, and the defense lawyer needs to identify and make good use of this circumstance. This revision extends the voluntary confession of bribery to the key role in the investigation of major cases, and extends to "breakthroughs in investigations", and coordinates with the supervision organs in handling cases, which is also a debate that needs to be paid attention to.
3. It is necessary to pay attention to the increase in the statutory penalty for the crime of offering bribes by units
Amendment (12) stipulates that Article 393 of the Criminal Law is amended to read:
Where a unit offers bribes for the purpose of seeking improper benefits, or violates state regulations by giving kickbacks or handling fees to state functionaries, and the circumstances are serious, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punishedThree(5) Up to one year imprisonment or short-term detention and a concurrent fine; where the circumstances are especially serious, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given. Where unlawful gains obtained through bribery are owned by individuals, they are to be convicted and punished in accordance with the provisions of articles 389 and 390 of this Law.
For a long time, there has been a large difference between the statutory sentences for the crime of offering bribes by units and the crime of offering bribes, resulting in an imbalance in sentencing. Before the amendment, there was only one statutory sentence for the crime of offering bribes by a unit, and the maximum sentence was five years in prison. As a result of the amendment, the statutory maximum sentence was increased to 10 years. From a practical point of view, the entities that constitute the crime of offering bribes by units are basically private companies and enterprises. Among them, the individuals who bear criminal responsibility are often the actual controllers of private companies and enterprises. Therefore, the revision of the statutory penalty for the crime of offering bribes by units is a wake-up call for private entrepreneurs and needs to be paid close attention to. From the perspective of criminal defense lawyers, it is necessary to pay attention to the application of relevant laws, properly handle cases, and strive for good defense results.
The first is to grasp the progress of the cases that are being handled.
According to the principle of applying the criminal law with the old and lenient from the old, only the criminal law before the amendment shall be applied to the cases being handled, and the provisions of the Amendment (12) shall not be applied. Therefore, from a legal point of view, the increase in the statutory sentence for the crime of offering bribes by units in the "Amendment (12)" will not affect the sentencing of the cases being handled, even if the judgment of these cases is rendered after March 1, 2024. However, the provisions of the legislation will inevitably affect the discretion of judges, and the criminal legislation has intensified the crackdown on the crime of offering bribes by units, and this legislative spirit will undoubtedly affect the exercise of judges' discretion in criminal punishment. Judges will always compare themselves with the new law, and consciously or unconsciously do a good job of bridging the old and new laws. In this case, it is advisable to complete the case as soon as possible.
The second is to accurately grasp the characterization of the crime of offering bribes by units.
Even though the Amendment (12) raises the statutory penalty for the crime of offering bribes by an entity, the punishment is still much lighter than that for the crime of offering bribes. On the one hand, the standard for criminalization is different, and the standard for filing a case for the crime of offering bribes by a unit is higher, currently 200,000 yuan, while the standard for the crime of offering bribes is lower. Second, there is a big difference in the statutory maximum sentence, with the maximum penalty for the crime of offering bribes by a unit being 10 years imprisonment, while the maximum sentence for the crime of offering bribes is life imprisonment. For this reason, for cases investigated and handled in accordance with ** crimes, if the conditions are met, the crime must be well defended. The main point of the distinction lies in the attribution of illegal gains, that is, whether they seek benefits for individuals or for the benefit of units.
The third is to do a good job of supporting defense work in conjunction with criminal policies.
The act of bribery by the operator of a private enterprise is an act that occurs in the course of the operation of the enterprise, and the handling of such cases is more policy-oriented. In the process of handling specific cases, on the one hand, it can be combined with compliance rectification to strive for a lighter treatment; On the other hand, it is necessary to integrate it with the overall situation of the state in protecting the healthy development of the private economy, and strive for the understanding and support of the case-handling organs.
Under the guidance of the above-mentioned case-handling ideas, the case progressed smoothly after a series of work such as compliance rectification, and finally obtained a suspended sentence.
The promulgation of the Amendment (12) is both an opportunity and a challenge for criminal defense, and defense lawyers need to judge the situation and make use of their strengths and avoid their weaknesses, so as to strive for good defense results.
Related Reading
Zhang Yijian: Understanding and Application of the Criminal Law Amendment (12).