Can a small amount of corruption be exempted from prosecution?

The crime of corruption refers to the act of state functionaries and persons entrusted by state organs, state-owned companies, enterprises, institutions and people's organizations to manage state-owned property, taking advantage of their positions, embezzling, stealing, defrauding or illegally occupying public property by other means. Corruption is a serious economic crime, which not only damages the image of the party and the country, hinders the process of socialist legal system construction, but also reduces the work efficiency of party and government organs, resulting in a crisis of trust in the whole society.

Amount accumulation

How to accumulate the amount of "repeated corruption untreated"

The second paragraph of Article 383 of the Criminal Law stipulates: "Those who have repeatedly committed corruption without treatment shall be punished according to the amount of corruption." There are different views on how to understand "unprocessed" in theory and different practices in judicial practice. The author thinks that, on the basis of correctly distinguishing corruption that constitutes a crime from corruption that does not constitute a crime, we should also consider the phenomenon that although the perpetrator commits corruption every time, it is relatively frequent and the accumulated amount is large. If the perpetrator embezzles 4,000 yuan for five times in a week, totaling 20,000 yuan, the social harm of this behavior is no less than the criminal act of embezzling 5,000 yuan at one time. Therefore, it is necessary to give a cumulative time limit to the behavior that the perpetrator commits corruption every time, but the number of times is relatively frequent and the cumulative amount of corruption is relatively large. It should be a crime if the total amount of corruption reaches more than 5,000 yuan within this cumulative period, and it should not be a crime if it fails to meet the standards.

In fact, there are precedents for calculating the amount of crimes in judicial interpretations related to property crimes. The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases holds that "if multiple thefts constitute a crime and should be prosecuted according to law, or if the last theft constitutes a crime and the previous theft is within one year, the amount of theft should be accumulated".

The author believes that the law should also determine a certain accumulation period for several kinds of corruption that do not constitute a crime every time, but are harmful to society, and the amount of corruption that does not constitute a crime every time in the accumulation period should be accumulated.

Identification standard

(1) Distinguish between this crime and non-crime.

As a special form of general corruption, the crime of corruption has its own characteristics in addition to the characteristics of general corruption and illegal acts. Corruption that constitutes the crime of corruption also requires the amount and circumstances of corruption. Therefore, when determining the crime of corruption and the general crime of corruption, we should grasp the following aspects:

1, depending on whether the amount of corruption of the perpetrator reaches 5 yuan. Among them, the amount of corruption is calculated by cumulative method. If the amount of corruption of the perpetrator reaches 5,000 yuan, regardless of the seriousness of the case, it constitutes a crime of corruption; If the amount of corruption has not reached 5,000 yuan, it should generally be recognized as ordinary corruption and illegal acts.

2. It depends on the degree of corruption of the perpetrator. Among them, the corruption plot is mainly aimed at corruption with a corruption amount below 5,000 yuan. If the amount of corruption is less than 5,000 yuan, and the circumstances of corruption are relatively minor, it should be recognized as a general corruption violation; If the amount of corruption is less than 5,000 yuan, but the circumstances of corruption are serious, it shall be recognized as the crime of corruption. Among them, the circumstances of the crime of corruption belong to the scope of heavier or lighter, which should generally be comprehensively analyzed and defined from the following aspects: (1) Look at the consistent performance of the actor; Second, look at the motives and purposes of the perpetrator's corruption; Third, look at the nature and use of the public (state-owned) property or the property of non-state-owned units that the perpetrator embezzled; Fourth, look at the corrupt means of the actor; Fifth, look at the consequences of corruption; Sixth, look at the performance of the actor's repentance. According to the Supreme People's Procuratorate1September 6, 1999, "Provisions on the Standards for People's Procuratorates to Directly Accept Cases for Investigation" (for Trial Implementation), the amount of personal corruption is less than 5,000 yuan, but it has the functions of corruption and disaster relief, emergency rescue and disaster relief, flood prevention, special care, poverty alleviation, immigration, relief funds and materials, donations, stolen money, confiscation of funds and materials, temporary withholding of funds and materials, and

(2) Determine the accomplished and attempted corruption.

The so-called accomplished crime of corruption refers to the behavior that the perpetrator intentionally illegally occupies the public * * * (state-owned) property or the property of non-state-owned units, which has all the elements of the crime of corruption and has produced harmful results. Therefore, whether the crime of corruption is accomplished or not, we should grasp the following two points:

1. See whether the corrupt behavior of the perpetrator meets the characteristics of the constitutive elements of corruption. Among them, the standard to measure illegal possession is whether the actor actually illegally occupies public * * * (state-owned) property or property of non-state-owned units. If it has actually been illegally possessed, it is regarded as accomplished.

2. See whether the corrupt behavior of the actor has caused objective harmful results. Among them, the criteria for measuring the results that have caused objective harm are: First, the amount of corruption actually reached 5,000 yuan; Second, although the amount of corruption has not actually reached 5,000 yuan, there is an objective fact that corruption is serious.

For corruption that meets the above two aspects, it can be considered as accomplished corruption.

penal provision

Article 382

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State functionaries who take advantage of their positions to embezzle, steal, cheat or illegally occupy public property by other means are guilty of corruption. Personnel entrusted by state organs, state-owned companies, enterprises, institutions and people's organizations to manage state-owned property embezzle, steal, defraud or illegally occupy state-owned property in other ways by taking advantage of their positions, which is regarded as corruption. Whoever colludes with the personnel listed in the preceding two paragraphs and colludes with corruption shall be punished as a * * * offender.

Article 383

Whoever commits the crime of corruption shall be punished in accordance with the following provisions according to the seriousness of the case:

(1) Whoever embezzles a huge amount or has other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined.

(2) If the amount of corruption is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined or confiscated.

(3) If the amount of corruption is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; If the amount is especially huge and the interests of the state and the people suffer particularly heavy losses, they shall be sentenced to life imprisonment or death, and their property shall be confiscated.

If repeated corruption is not handled, it shall be punished according to the accumulated amount of corruption.

Whoever commits the crime mentioned in the first paragraph, truthfully confesses his crime before initiating public prosecution, sincerely repents, and actively returns stolen goods to avoid or reduce the occurrence of damage. Under the circumstances specified in the first paragraph, the punishment may be lightened, mitigated or exempted; In the case of the second and third provisions, a lighter punishment may be given.

If a person commits the crime mentioned in the first paragraph and is sentenced to a suspended sentence under the circumstances specified in the third paragraph, the people's court may, according to the circumstances of the crime, at the same time decide to reduce his death sentence to life imprisonment after the expiration of the two-year suspension of execution, without commutation or parole.

Article 287

Whoever uses computers to commit financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law.

Article 183

Any employee of an insurance company who, by taking advantage of his position, deliberately fabricates an insurance accident that has never happened to make false claims and defrauds the insurance money into personal possession shall be convicted and punished in accordance with the provisions of Article 271 of this Law. Staff members of state-owned insurance companies and personnel assigned by state-owned insurance companies to engage in public service in non-state-owned insurance companies who commit the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law.

Article 394 State functionaries who accept gifts in domestic official activities or foreign exchanges shall hand them in according to state regulations and shall not make them public. If the amount is relatively large, this law shall apply.

The provisions of Articles 382 and 383 shall be convicted and punished.

Article 93

State functionaries mentioned in this Law refer to those who are engaged in public affairs in state organs.

Personnel engaged in public service in state-owned companies, enterprises, institutions and people's organizations, personnel engaged in public service in non-state-owned companies, enterprises, institutions and social organizations appointed by state organs, state-owned companies, enterprises and institutions, and other personnel engaged in public service according to law are regarded as national staff.

Article 91

Public property as mentioned in this Law refers to the following properties: (1) State-owned property; (2) Property collectively owned by the working people; (3) Property donated by the society or with special funds for poverty alleviation and other public welfare undertakings. Private property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations shall be regarded as public property.

Legislative interpretation

The NPC Standing Committee is about

The NPC Standing Committee's discussion on the work of village grass-roots organizations such as villagers' committees belongs to "other persons who engage in public affairs according to law" as stipulated in the second paragraph of Article 93 of the Criminal Law. The explanation is as follows:

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Members of village grass-roots organizations, such as villagers' committees, assist the people's government to carry out the following administrative work, which belongs to "other persons engaged in public affairs according to law" as stipulated in the second paragraph of Article 93 of the Criminal Law:

(a) disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, disaster relief funds and materials management;

(two) the management of social donations to public welfare undertakings;

(three) the operation and management of state-owned land;

(four) the management of land expropriation compensation fees;

(5) Collecting and paying taxes;

(six) family planning, household registration and conscription;

(seven) to assist other administrative work of the people's government. The provisions of Articles 382 and 383 of the Criminal Law on the crimes of corruption, misappropriation of public funds, bribery, embezzlement, embezzlement and bribery are applicable to those who engage in official duties as mentioned in the preceding paragraph, take advantage of their positions, illegally occupy public property, misappropriate public funds, ask for or illegally accept other people's property.

It is hereby announced.

judicial explanation/interpretation

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery was adopted at the1680th meeting of the Judicial Committee of the Supreme People's Court and the 50th meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on March 28th, 2065, and is hereby promulgated, with the date of promulgation starting from April 28th, 2065.

The Supreme People's Procuratorate, the Supreme People's Court.

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2016 April 18

In order to punish the criminal activities of corruption and bribery according to law, according to the relevant provisions of the criminal law, some issues concerning the application of law in handling criminal cases of corruption and bribery are explained as follows:

Article 1 Whoever embezzles or accepts bribes in an amount of not less than 30,000 yuan but not more than 200,000 yuan shall be deemed as a "relatively large amount" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined.

If the amount of corruption is more than 10,000 yuan but less than 30,000 yuan, under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined:

(a) corruption disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief, epidemic prevention, social donations and other specific funds and materials;

(2) Being disciplined or administratively punished for corruption, bribery or misappropriation of public funds;

(3) Being criminally investigated for intentional crimes;

(four) the stolen money is used for illegal activities;

(5) refusing to account for the whereabouts of the stolen money or refuse to cooperate with the recovery work, which makes it impossible to recover it;

(6) Causing adverse effects or other serious consequences.

If the amount of bribes is more than 10,000 yuan but less than 30,000 yuan, and it falls under the circumstances specified in Items 2 to 6 of the preceding paragraph, or under any of the following circumstances, it shall be deemed as "other serious circumstances" as specified in the first paragraph of Article 383 of the Criminal Law, and it shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and fined:

(a) repeatedly asking for bribes;

(two) to seek illegitimate interests for others, resulting in the loss of public property, the interests of the state and the people;

(3) seeking job promotion or adjustment for others.

Article 2 Whoever embezzles or accepts bribes in an amount of more than 200,000 yuan but less than 3 million yuan shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined or confiscated.

If the amount of corruption is more than 100,000 yuan but less than 200,000 yuan, it shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 383 of the Criminal Law, and it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined or confiscated.

If the amount of bribes is more than 100,000 yuan but less than 200,000 yuan, and one of the circumstances stipulated in the third paragraph of Article 1 of this Interpretation is involved, it shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 383 of the Criminal Law, and it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined or confiscated.

Article 3 Whoever embezzles or accepts bribes in an amount of more than 3 million yuan shall be deemed as "extremely huge" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated of property.

If the amount of corruption is more than 1.5 million yuan but less than 3 million yuan, it shall be deemed as "other particularly serious circumstances" as stipulated in the first paragraph of Article 383 of the Criminal Law, and it shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated.

If the amount of bribes is more than 1.5 million yuan but less than 3 million yuan, and one of the circumstances stipulated in the third paragraph of Article 1 of this Interpretation is involved, it shall be deemed as "other particularly serious circumstances" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated.

Article 4 If the amount of corruption and bribery is especially huge, the circumstances of the crime are particularly serious, and the social impact is particularly bad, causing particularly heavy losses to the interests of the state and the people, the death penalty may be imposed.

In accordance with the provisions of the preceding paragraph, but have surrendered, rendered meritorious service, truthfully confessed their crimes, sincerely repented, actively returned stolen goods, or avoided or reduced the occurrence of damage results. If immediate execution is not required, the death penalty may be suspended for two years.

Those who meet the requirements of the first paragraph may be sentenced to death with a two-year suspension of execution according to the circumstances of the crime. After the expiration of the two-year suspension of execution, the referee shall be sentenced to life imprisonment without commutation or parole.

Article 5 Whoever misappropriates public funds for personal use to engage in illegal activities and the amount is more than 30,000 yuan shall be investigated for criminal responsibility for the crime of misappropriating public funds in accordance with the provisions of Article 384 of the Criminal Law; If the amount is more than 3 million yuan, it shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 384th of the Criminal Law. Under any of the following circumstances, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 384th of the Criminal Law:

(a) the amount of misappropriation of public funds is more than one million yuan;

(2) misappropriating specific funds and materials such as disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief, with the amount of more than 500,000 yuan but less than 1 million yuan;

(three) misappropriation of public funds is not returned, and the amount is less than 500 thousand yuan/kloc-0 million yuan;

(4) Other serious circumstances.

Article 6 Whoever misappropriates public funds for personal use, conducts profit-making activities or fails to pay them back for more than three months, and the amount is more than 50,000 yuan, shall be deemed as "a large amount" as stipulated in the first paragraph of Article 384 of the Criminal Law; If the amount is more than 5 million yuan, it shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 384th of the Criminal Law. Under any of the following circumstances, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 384th of the Criminal Law:

(a) the amount of misappropriation of public funds is more than two million yuan;

(two) misappropriation of disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and other specific funds and materials, the amount is more than one million yuan but less than two million yuan;

(three) misappropriation of public funds, the amount of more than one million yuan but less than two million yuan;

(4) Other serious circumstances.

Article 7 Whoever, for the purpose of seeking illegitimate interests, offers bribes to state functionaries in an amount of more than 30,000 yuan shall be investigated for criminal responsibility for accepting bribes in accordance with the provisions of Article 390 of the Criminal Law.

If the amount of bribes is more than 10,000 yuan but less than 30,000 yuan, under any of the following circumstances, criminal responsibility shall be investigated for accepting bribes in accordance with the provisions of Article 390 of the Criminal Law:

(a) Bribery of three or more persons;

(2) Bribery by using illegal income;

(3) seeking job promotion or adjustment through bribery;

(4) offering bribes to state functionaries who are responsible for the supervision and management of food, medicines, production safety and environmental protection, and engaging in illegal activities;

(five) bribing judicial personnel, which affects judicial justice;

(6) Causing economic losses of more than 500,000 yuan but less than 1 million yuan.

Article 8 Under any of the following circumstances, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 390 of the Criminal Law:

(a) the amount of bribes is more than one million yuan but less than five million yuan;

(2) The amount of bribes paid is more than 500,000 yuan but less than 1 million yuan, and it falls under any of the circumstances specified in Items 1 to 5 of Paragraph 2 of Article 7 of this Interpretation;

(3) Other serious circumstances.

Whoever, in order to seek illegitimate interests, pays bribes to state functionaries, resulting in economic losses of more than one million yuan but less than five million yuan, shall be deemed as "causing great losses to state interests" as stipulated in the first paragraph of Article 390 of the Criminal Law.

Article 9 Under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 390 of the Criminal Law:

(a) the amount of bribes is more than five million yuan;

(two) the amount of bribes is more than 2.5 million yuan but less than 5 million yuan, which belongs to one of the circumstances specified in items 1 to 5 of the second paragraph of Article 7 of this interpretation;

(3) Other particularly serious circumstances.

Whoever, in order to seek illegitimate interests, pays bribes to state functionaries, causing economic losses of more than 5 million yuan, shall be deemed as "causing particularly heavy losses to state interests" as stipulated in the first paragraph of Article 390 of the Criminal Law.

Article 10 The applicable standards for conviction and sentencing of the crime of accepting bribes by using influence as stipulated in Article 388 of the Criminal Law shall be implemented with reference to the provisions of this Interpretation on the crime of accepting bribes.

The applicable standards for conviction and sentencing of the crime of accepting bribes by using influence stipulated in Article 390 of the Criminal Law shall be implemented with reference to the provisions of this Interpretation on the crime of accepting bribes.

If a unit pays bribes to influential people with an amount of more than 200,000 yuan, it shall be investigated for criminal responsibility for the crime of bribing influential people in accordance with the provisions of Article 390-1 of the Criminal Law.

Article 11 The starting point of the amount of "large amount" and "huge amount" in the crime of accepting bribes by non-state staff as stipulated in Article 163 of the Criminal Law and the crime of embezzlement by taking advantage of posts as stipulated in Article 271 shall be two times and five times the corresponding amount standards for the crime of accepting bribes and corruption as stipulated in this Interpretation.

The starting point of the amount of "large amount", "huge amount" and "engaging in illegal activities" in the crime of misappropriating funds stipulated in Article 272 of the Criminal Law shall be twice the amount standard of "large amount", "serious circumstances" and "engaging in illegal activities" in this interpretation.

The starting point of the amount of "large amount" and "huge amount" in the crime of bribing non-state staff as stipulated in the first paragraph of Article 164 of the Criminal Law shall be twice the amount standard as stipulated in the first paragraph of Article 7 and Article 8 of this Interpretation.

Article 12 "Property" in bribery crimes includes money, goods and property interests. Property interests include material interests that can be converted into money, such as house decoration and debt relief, and other interests that need to be paid in money, such as membership services and tourism. The amount of crime committed by the latter shall be calculated according to the amount actually paid or payable.

Thirteenth any of the following circumstances shall be deemed as "seeking benefits for others", which constitutes a crime and shall be convicted and punished in accordance with the provisions of the Criminal Law on the crime of accepting bribes:

(a) the actual or promised to seek benefits for others;

(two) knowing that others have specific matters;

(3) accepting other people's property on the grounds of performing their duties afterwards without being entrusted when performing their duties.

If a state functionary asks for or accepts property worth more than 30,000 yuan from a subordinate with a superior-subordinate relationship or a managed person with an administrative relationship, which may affect his exercise of functions and powers, it shall be deemed as a commitment to seek benefits for others.

Article 14 A person who may be sentenced to fixed-term imprisonment of not more than three years according to the facts and circumstances of the crime of accepting bribes may be regarded as a "minor crime" as stipulated in the second paragraph of Article 390 of the Criminal Law.

According to the facts and circumstances of the crime, those who have been or may be sentenced to fixed-term imprisonment of more than 10 years, or whose cases have a significant impact in this province, autonomous region, municipality directly under the Central Government or the whole country, can be identified as "major cases" as stipulated in the second paragraph of Article 390 of the Criminal Law.

Under any of the following circumstances, it can be regarded as "playing a key role in solving major cases" as stipulated in the second paragraph of Article 390 of the Criminal Law:

(a) take the initiative to explain the clues of major cases that the case-handling organ has not mastered;

(2) The criminal clues voluntarily confessed do not belong to the clues of major cases, but play an important role in the detection of major cases;

(3) voluntarily confessing the facts of accepting bribes and playing an important role in the collection of evidence in major cases;

(4) Taking the initiative to confess the facts of accepting bribes plays an important role in the pursuit of major cases.

Fifteenth for repeated bribery untreated, the cumulative amount of bribes.

State functionaries took advantage of their positions to accept the property of the trustee many times before and after, seeking benefits for the trustee. If the amount of property received before entrustment is more than 10,000 yuan, it shall be included in the amount of bribes.

Article 16 If a state functionary illegally occupies public property, accepts other people's property, and then uses the stolen money and goods for official expenses of his unit or social donations, it will not affect the determination of the crime of corruption and bribery, but it can be considered as appropriate when sentencing.

State functionaries who ask for or accept other people's property, knowing that it is other people's property, but do not return it or hand it in, shall be deemed as state functionaries' intention to accept bribes.

Article 17 Where a state functionary takes advantage of his position to accept property from others and seek benefits for others, and at the same time constitutes the crime of accepting bribes and dereliction of duty as stipulated in Chapter III, Section III and Chapter IX of the Specific Provisions of the Criminal Law, unless otherwise stipulated in the Criminal Law, he shall be punished with several crimes of accepting bribes and dereliction of duty.

Article 18 All property illegally obtained by criminals of corruption and bribery shall be recovered or ordered to make restitution in accordance with the provisions of Article 64 of the Criminal Law, and the lawful property of the victim shall be returned in time. For the illegal income that has not been recovered or has not been fully repaid, it shall continue to be recovered or ordered to make restitution.

Article 19 Whoever is sentenced to fixed-term imprisonment of not more than three years or criminal detention for corruption and bribery shall also be fined not less than 100,000 yuan but not more than 500,000 yuan; Be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and be fined not less than 200,000 yuan but not more than two times, or have property confiscated; Whoever is sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment shall also be fined not less than 500,000 yuan but not more than two times, or his property shall be confiscated.

Other crimes of corruption and bribery stipulated in the Criminal Law, with a fine, shall be fined not less than 100,000 yuan but not more than two times.

Article 20 This Interpretation shall come into force on April 18, 2065. If the judicial interpretations previously issued by the Supreme People's Court and the Supreme People's Procuratorate are inconsistent with this interpretation, this interpretation shall prevail.