Circular of the Supreme People's Court and the Supreme People's Procuratorate on the Issuance of the Opinions on Issues relating to the Application of Law in the Handling of Criminal Cases Involving the Acceptance of Bribes

　　Fa Fa [2007] No. 22

　　July 8, 2007

　　To the higher people's courts and people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, the court-martials and military procuratorates of the People's Liberation Army, and the production and construction corps court of the Higher People's Court of Xinjiang Uigur Autonomous Region and the people's procuratorate of the Xinjiang Production and Construction Corps:

　　The Opinions on Issues relating to the Application of Law in the Handling of Criminal Cases Involving the Acceptance of Bribes are hereby issued to you for implementation.

　　In order to crack down on crimes of acceptance of bribes in accordance with the law, in accordance with the relevant provisions of the Criminal Law, opinions on some issues concerning the specific application of law in the handling of criminal cases involving the acceptance of bribes are hereby set out as follows:

I. Issues relating to the acceptance of bribes by way of entering into any transactions
　　A government employee who accepts an item from a person in any of the following forms of transaction in order to secure benefits for such a person by making use of his or her official status shall be punished for the of acceptance of bribes:
　　1. Purchasing any house, automobile or any other item from such a person at a price that is obviously lower than the market price;
　　2. Selling housing, automobile or any other item to such a person at a price that is obviously higher than the market price; and
　　3. Accepting illegally an item from a person in any other form of transaction.
　　The amount of bribe shall be calculated as per the difference between the local market price and the actual paid price at the time of transaction.
　　The market price as mentioned in the preceding paragraph shall include the minimum preferential price that is made in advance by a commodity dealer and is not intended for a particular person. The purchase of commodity at a preferential price according to the various preferential conditions set forth in advance by a commodity dealer shall not constitute the acceptance of a bribe.

II. Issues relating to the acceptance of free shares
　　The free shares shall refer to the shares obtained without making capital contribution. A government employee who accepts free shares offered by a person in order to secure the benefit of such a person by making use of his or her official status shall be punished for the acceptance of bribes. Where share transfer registration has been made, or the relevant evidence proves that the share has been actually transferred, the amount of bribe shall be calculated as per the value of shares at the time of transfer, and any bonus received shall be handled as the fruit from the bribe. Where the shares have been actually transferred, and the benefit is received in the name of a share bonus, the amount of benefit actually obtained shall be deemed as the amount of bribe.

III. Issues relating to the acceptance of bribes under the disguise of establishing a company or any other venture business
　　A government employee who "jointly" runs a company with his due contribution being made by a person or makes any other "joint" investment in order to secure the benefit of such a person by making use of his or her official status shall be punished for the acceptance of bribes. The amount of bribes shall be the amount of contribution made by such a person for the state functionary.
　　A government employee who accepts "profits" in the name of jointly running a company or making any other jointly investment but does not make actual contribution and take part in the management and business operation in order to secure the benefit of the person by making use of his or her official status shall be punished for the acceptance of bribes.

IV. Issues relating to the acceptance of bribes under the disguise of instructing a favor-seeking party to make investments in securities or futures or any other wealth management products
　　A government employee who accepts, without making contribution, "proceeds" under the disguise of instructing a favor-seeking party to make investments in securities or futures or any other wealth management products or accepts, though he actually makes his contribution, "proceeds" that are obviously higher than the proceeds receivable on the contribution in order to secure the benefit of such a party by making use of his or her official status shall be punished for the acceptance of bribes. The amount of bribes shall be calculated as per the amount of "proceeds" in the former circumstance; and as per the difference between the amount of "proceeds" and the amount of proceeds receivable on the contribution in the latter circumstance.

V. Issues relating to the recognition of acceptance of bribes by way of gambling
　　As provided in Article 7 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Hearing Gambling Criminal Cases, the acceptance of bribers arise if a government employee attempts to seek benefits for any favor-seeking party by taking advantage of his or her position and accepts in return any property from any such favor-seeking party by way of gambling.
　　In actual practices, a line should be drawn between gambling activities for bribery and entertainment purposes. In specific recognition of such gambling activities, a judgment should primarily be made on the basis of the following factors:
　　1. The setting, place, time and number of the gambling activities;
　　2. The sources of money used in the gambling activities;
　　3. Whether or not others gamblers collude with each other in advance; and
　　4. Particulars on the money or property lost and won and the amount involved;

VI. Issues relating to the receipt of salary by a specific interested person without actually being employed
　　Where a government employee attempts to seek benefits for any favor-seeking party by taking advantage of his or her position and in return demands or accepts the arrangements of any such favor-seeking party arrangements in which a specific interested person acquires salary without actually being employed, it should be deemed that the government employee has accepted a bribe.

VII. Issues relating to the acceptance of bribers by a specific interested person
　　Where a government employee attempts to seek benefits for any favor-seeking party by taking advantage of his or her position and in return asks any such favor-seeking party to deliver any relevant property to a specific interested person through any of the ways specified herein, it should be deemed that the government employee has accepted a bribe.
　　Where the specific interested person colludes with the government employee to carry out the action described in the preceding paragraph, the specific interested person should be treated as an accomplice for the crime of acceptance of bribes. Where any person other than the specific interested person colludes with the government employee to seek benefits by the government employee for any favor-seeking party by taking advantage of his or her position and they share any property received from any such favor-seeking party, any such person should be treated as an accomplice for the crime of acceptance of bribes.

VIII. Issues relating to the acceptance of bribes without transferring the ownership of the articles involved
　　Where a government employee attempts to seek benefits for any favor-seeking party by taking advantage of his or her position and accepts in return any house, automobile or other articles from any such favor-seeking party without making ownership transfer registrations or such registrations are made in another person's name, the government employee should still be deemed to have accepted a bribe.
　　In the recognition of the acceptance of bribes in the form of articles such as a house or automobile, attention should be paid to the distinction between bribery and borrowing purposes. In specific recognition, in addition to confessions made by or written agreements concluded by both parties, a judgment should primarily be made on the basis of the following factors:
　　1. Whether or not there is any reasonable reason for borrowing purposes;
　　2. Whether or not the articles involved are actually used;
　　3. The length of time for which the articles are borrowed;
　　4. Whether or not there are any conditions for returning the articles; and
　　5. Whether or not there is any expression of intention to return the articles as well as the act of doing so.

IX. Issues relating to the return or handing-in of property accepted
　　Where a government employee timely returns or hands in any property received from a favor-seeking party, it should not be deemed that the government employee has accepted a bribe.
　　Where a government employee returns or hands in any accepted bribe to conceal his or her crime when he or she or any person or matter related to the bribery is under investigation.

X. Issues relating to the acceptance of property by government employees after departure from office while seeking benefits for a favor-seeking party when in position
　　Where a government employee, before or after attempting to seek benefits for a favor-seeking party by taking advantage of his or her position, agrees to receive any property from such a favor-seeking party after his or her departure from office and in fact does so, it should be deemed that the government employee has accepted a bribe.
　　Where a government employee attempts to seek benefits for any favor-seeking party by taking advantage of his or her position and receives in succession any property from any such favor-seeking party before and after his or her departure from office, property received both before and after his or her departure from office should be included in the amount of bribes.

XI. The scope of the specific interest person
　　The term "specific interested person" as used herein refers to any person who is a near relative of a government employee, is in an inappropriate love relationship with the government employee or shares other common interests with the government employee.

　　XII. Issues relating to the correct implementation of the criminal policy of tempering justice with mercy
　　In handling criminal cases involving the acceptance of bribes in accordance with these Opinions, pursuant to the relevant provisions of the Criminal Law relating to the crime of acceptance of bribes and on the basis of the essential characteristics of money-for-power deals involved in the crime of acceptance of bribes, an accurate distinction should be made between criminal offences and non-criminal offences and different crimes, punishment should be imposed sparingly and education should be encouraged in most cases. While severe punishments should be given to the parties involved in criminal offences involving the acceptance of bribes, any party who voluntaries surrender himself or herself, renders meritorious services, or falls under any other circumstances should be given a lesser or mitigated punishment or be exempt from punishment.