Author: Lawyer Han Shuai, Beijing Yunting Law FirmManagementPartner,Director of the Criminal Committee, Deputy Secretary-General of the Criminal Committee of the Chaoyang District Lawyers Association, External Tutor of Beijing University of Technology, formerCapital prosecutor, head of criminal risk control business of Fintech Group
Zhu YiboLawyer of Beijing Yunting Law Firm.
An IOU is a kind of creditor's right to pay money, which is "property" in the crime of bribery
[Main Points of the Adjudication].
"Property" in the crime of bribery includes money, goods and property interests. An IOU is a claim for the payment of money, and even if it has not been cashed, it is still a property interest. The amount of bribes paid in the form of IOUs shall be determined to be the amount of bribes.
[Referee's Thoughts].
Basic facts of the case
From 2015 to 2017, in the course of the company's operation, Liao Mouxiu found a counterfeiter to make a false certificate of rights for the relevant real estate, and then submitted the false certificate of rights to a guarantee company for counter-guarantee mortgage, so that the guarantee company could guarantee the loan to the bank. In order to successfully pass the audit, Liao Mouxiu sent a total of 49 to Jiang, a staff member of a guarantee company20,000 yuan, of which 2420,000 yuan is cash, and 250,000 yuan is an IOU.
The court of first instance convicted Liao Mouxiu of offering bribes to non-state functionaries. After the first-instance verdict was announced, Liao Mouxiu was dissatisfied and appealed.
Focus of controversy: If a bribe is given in the form of an IOU, and the IOU has not been honored, can the amount agreed in the IOU be determined as the amount of bribes?
Defence Opinion:
Liao's defender proposed that the amount of bribes proposed could only be 2420,000 yuan is calculated, and 250,000 yuan is an IOU, which cannot be determined as the amount of bribes.
The court of second instance held that:
After investigation, Liao Mouxiu gave Jiang a bribe in cash, and part of it was through an IOU issued by Liao Mouxiu after settling accounts. An IOU is a kind of claim with the content of giving money, and although it has not been realized, the IOU is a property interest. Giving money or property to the staff of a company, enterprise or other unit for the purpose of obtaining improper benefits, and the relatively large amount constitutes the crime of offering bribes to non-state functionaries, including not only money and goods, but also other property interests that can be measured in money. Therefore, the amount of bribes offered in the form of IOUs should also be determined as the amount of bribes.
[Judgment Result].
The appeal was dismissed and the original judgment was affirmed.
[Case Quick Review].
According to Article 7 of the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Commercial Bribery, the property in the crime of bribery includes not only money and physical goods, but also property interests that can be calculated in money, such as the provision of house decoration, membership cards containing amounts, token cards (coupons), travel expenses, etc.
As to whether the 250,000 yuan agreed in the IOU issued by Liao Mouxiu to Jiang in this case can be determined as the amount of bribes, the court's adjudication idea is that although the 250,000 yuan has not been actually paid, it is a creditor's right, and if Jiang files a civil lawsuit with the court with this IOU, it is possible to realize the creditor's right, so it is a property interest, and the amount of bribes paid in the form of an IOU should be determined to be the amount of bribes.
Case **: Liao Mouxiu's bribery case of non-state functionaries [Intermediate People's Court of Enshi Tujia and Miao Autonomous Prefecture, Hubei Province (2020) E 28 Xingzhong No. 85].
About the Author:
Lawyer Han Shuai is the director of the Criminal Committee of Beijing Yunting Law Firm, the deputy secretary-general of the Criminal Committee of the Beijing Chaoyang District Lawyers Association, and the off-campus tutor of Beijing University of Technology. He has worked in the procuratorate of a municipality directly under the central government and the legal compliance department of a financial group. Possess ** qualifications, ** qualifications. The leading lawyer team members have obtained a master's degree in law, have a deep foundation in science and practice, and have handled nearly 1,000 cases of various kinds. He has provided a full range of legal services for Asia's largest chemical product manufacturer, the president of a well-known A-share listed company, the CEO of a financial group, the former executive of a multinational enterprise (Fortune 500), the chairman of a real estate enterprise group in Beijing, the founder (CTO) of an industry-leading enterprise, the chairman of a state-owned enterprise in Chongqing, and many entrepreneurs, executives and leading cadres, and achieved good results. ** has successfully handled bail pending trial in a number of cases, and obtained the defense effect of withdrawing the case, not approving arrest, not prosecuting or not guilty verdict. The team is providing regular legal services and special services for a number of listed companies, financial holding groups, ** enterprises, etc. Team members have been invited to give lectures at famous universities and enterprises such as the Criminal Science Institute of Beijing Normal University, CICC Resources, PICC Property Insurance, Sina Digital, Didi, and Shede Liquor.
The team has been deeply engaged in the following areas: (1) defense of major cases, especially economic, financial and duty crimes; (2) dispute resolution in intersecting criminal and civil cases; (3) Prevention and control of corporate criminal legal risks.