Recently, Zhang Yanfeng lawyer handled a unit bribery case, the court made a first-instance verdict, sentenced the defendant to two years of imprisonment (a few months after the expiration of the term), won the parties and their families praise.

The basic case

A business owner paid a bribe of more than 5 million RMB to a government official in his own name and by transferring money from his own card, and the Supervisory Committee's Indictment Opinion held that it constituted the crime of active bribery, which should be sentenced to more than 10 years' imprisonment according to the regulations. The case has also received attention for active bribery cases due to the high position of the bribe-taker.

Zhang Yanfeng lawyer first contact with the family thought that may belong to the unit of active bribery, the family said it is not a unit of behavior, but individual behavior, the bribe is not a unit of money, but a personal card, so the Supervisory Committee that the individual bribe is not a unit of active bribery. Handling commission after the first meeting with the client, Zhang lawyer again raised and focused on understanding this issue, and then explain the suspect the difference between individual and unit bribery, and pointed out that the lawyer believes that the unit bribery is more appropriate.

Zhang lawyer read the file the first time to communicate with the prosecutor, and submitted a written defense. And then specifically on the charge of further telephone communication, the prosecutor said that the Supervisory Committee that is an individual bribe, if the lawyer that belongs to the unit of active bribery can be discussed in detail and submit evidence on this issue, the prosecutor can communicate with the Supervisory Committee. Subsequently, Mr. Zhang drafted and mailed to the public prosecutor a special discussion of the crime of the defense, including authoritative discussion, relevant cases. The public prosecutor was conscientious and responsible, and had high legal literacy, and finally accepted the lawyer's opinion and signed the Plea and Guilty Plea Agreement with the defendant for a two-year sentence.

This case is also a successful case in which the defense battlefield was moved forward (defense work started at the stage of examination and prosecution).

Mr. Zhang believes that this case belongs to the main reasons for the unit bribery offense

First, the difference between the crime of active bribery and the crime of unit bribery

The Supreme Prosecutor Dong Guiwen pointed out in the Judicial Determination of the Boundary between the Crime of Active Bribery and the Crime of Unit Bribery that “in the determination of the boundary between the crime of active bribery and the crime of unit bribery, the key is to look at two aspects: one is the will to bribe, and the other is the attribution of benefits.” “It is the collective decision of the unit or the decision of the head of the unit that belongs to the will of the unit.” “In a nutshell, with the different will to bribe to delineate, the active bribery crime in the active bribery will is personal will, its starting point and attribution point is to seek improper interests for individuals; and the unit active bribery crime in the active bribery will is the unit will, its starting point and attribution point is to seek improper interests for the unit.” “The essence of the crime of active bribery is to pay bribes in order to seek undue benefits for an individual, and the essence of the crime of unit bribery is to pay bribes for the benefit of the unit as a whole; therefore, the attribution of the undue benefit is the key to distinguishing between unit bribery and bribery by natural persons.”

People's Court Casebook No. 2023-03-1-411-001, “Ma Moumou and Other Units' Active Bribery Case” Decision Summary: “1. For the active bribery committed by the person in charge of the unit, attention should be paid to distinguishing between the unit's active bribery and the individual's active bribery. Whether the bribe money originates from a unit or an individual is not the key factor in distinguishing between unit and individual active bribery. The distinction between the two depends on whether the act of bribery embodies the will of the unit or the will of the individual, and whether the benefits obtained are attributable to the unit or the individual. 2. To determine whether the act of bribery committed by the person in charge of the unit represents the will of the unit, attention shall be paid to examining whether there is any correlation between the benefits obtained through bribery and the business of the unit, and if there is no correlation between the benefits obtained and the business of the unit, then it cannot be determined that it represents the will of the unit. ”

People's Justice (Cases)” published in the ‘unit bribery crime and bribery crime distinction’ also holds the same view.

Second, the characteristics of this case

1. The act of giving bribes embodies the will of the unit

The suspect has been serving as the legal representative of an industrial limited company from January 2009 to July 2022, and is able to represent the will of the unit.

2. The benefits sought are attributable to the unit

According to the Prosecution Opinion, the suspect to the leadership of the transfer of funds for the purpose of three, one is to maintain relations with the leadership, the second is to ask the leadership to help introduce a business, and the third is to ask the leadership to coordinate the return of a group of a company's arrears problem.

First of all, as a business owner, maintain the relationship with the leadership, the evidence in the case is not for their own promotion, children's school enrollment and other personal purposes, obviously for business operations.

Secondly, to ask the leadership to help introduce a certain business itself is for the purpose of business operations.

Again, the coordination of a group to return a company's arrears, although not directly for their own businesses, but indirectly for their own businesses. In this regard, he confessed: “Q: Why did you help a certain enterprise and ask the leader to coordinate the payment of arrears to a certain group? A: Because I was doing business with this enterprise, thinking that this company could thank me so that all aspects of my business could go smoothly.”

3. The suspect's company has independent personality

The company is established in accordance with the law, the legal existence, in essence, has an independent personality, has independent property or funds, can independently assume criminal responsibility.