Recently, a bid-rigging case involving over 22 million yuan, in which attorneys Yan Huainan and Zhou Sai of King&Capital Law Firm served as defense counsel, was adjudicated by a municipal people’s court. Despite the presence of bribery during the bid-rigging process and the risk of the defendant facing cumulative sentencing for multiple offenses and an actual prison term, the two defense attorneys, through in-depth analysis of the case, precise legal arguments, and full utilization of national policies protecting private entrepreneurs, successfully secured a lenient sentence for the defendant, Zhao Moumou: eight months’ imprisonment for the crime of bid-rigging, suspended for one year. The defendant was able to reintegrate into society, and the private enterprise he managed avoided the crisis of falling into financial distress due to the imprisonment of its leader.
I. Case Overview: A Project Worth Over 20 Million Yuan Involved in Criminal Activity, High Risk of Cumulative Sentencing, and a Company on the Brink of Collapse
The involved enterprise, a certain water utility company, is a key enterprise in a certain province and ranks among the top in the national water sector. The defendant, Zhao Moumou, was the person in charge of the company’s projects in that province. In December 2022, during the bidding process for an equipment procurement project at a certain municipal water supply company (a state-owned enterprise) in that province, Zhao Moumou engaged in improper communication with relevant leaders of the water supply company to ensure his company won the bid. Additionally, he bribed various leaders of the state-owned enterprise.
This case came to light during an investigation by the city’s Commission for Discipline Inspection into official misconduct by leaders of the water supply company. Following the incident, Zhao was apprehended and placed under criminal detention in November 2023. However, during this period, the Commission also investigated his bribery activities in connection with the aforementioned official misconduct. Consequently, Zhao’s actions constitute both the crime of bribery and the crime of bid-rigging, exposing him to the risk of cumulative punishment for multiple offenses.
As the head of a private enterprise, Zhao’s imprisonment not only jeopardized his personal freedom but also directly impacted the operations of his company’s more than 20 ongoing and near-completion projects in the province, the livelihoods of over 100 employees, and the recovery of nearly 100 million yuan in accounts receivable, leaving the company’s survival hanging by a thread.
II. Defense Strategy:
Implementing a Multi-Faceted Approach to Seek a Lenient Sentence
Faced with the massive amount involved in the case and the risk of cumulative sentencing, attorneys Yan Huainan and Zhou Sai immediately began working on the case upon accepting the retainer.
During the investigation and inquiry phases, the two attorneys met with Zhao Moumou on multiple occasions, communicated frequently with the investigative authorities, and successfully engaged with staff from the municipal Commission for Discipline Inspection to articulate their defense arguments, thereby preventing the case from being transferred to the prosecution on charges of both bid-rigging and bribery. Through effective communication, Zhao Moumou was subsequently transferred to prosecution on a single charge of bid-rigging. As the case entered the review and prosecution phase, the prosecuting attorney indicated during discussions with the defense counsel that the case should be prosecuted under both bid-rigging and bribery charges. Consequently, Zhao Moumou faced the risk of cumulative punishment for multiple offenses. After reviewing a large number of case precedents, the defense attorney discovered that judicial practice regarding bribery occurring during bid-rigging is not uniform. The divergence lies in the following: one view holds that the bidder’s bribery is connected to the crime of bid-rigging, constituting a connected offense, and should be punished according to the more serious offense; the other view holds that winning the bid and profiting from it is the bidder’s primary objective, and that the bribery and bid-rigging acts were merely means to that end. They do not constitute a relationship of causation between cause and effect or between means and purpose. Furthermore, according to Article 6 of the “Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Bribery” (hereinafter referred to as the “Interpretation”) issued by the Supreme People’s Court and the Supreme People’s Procuratorate, if the briber’s act of seeking improper benefits constitutes a crime, it shall be punished cumulatively with the crime of bribery. After analysis, the two defense attorneys concluded that the prosecutor was likely influenced by the second view mentioned above. Furthermore, a review of case law revealed that the vast majority of cases result in concurrent sentencing for both the crime of bid-rigging and the crime of bribery. Faced with this unfavorable situation, to change the prosecutor’s perspective, it was essential to find solid grounds. After extensive research, the defense counsel developed the following line of reasoning: This case is unique in that the perpetrator committed bribery for the purpose of bid-rigging—specifically, using bribes to collude with the tenderer—constituting a single act. Furthermore, pursuant to Article 68 of the “Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)” (effective May 15, 2022) issued by the Supreme People’s Procuratorate and the Ministry of Public Security, “Where bidders collude with one another on bid prices, or where a bidder colludes with the tenderer, and any of the following circumstances are suspected, a case shall be filed and prosecuted: (4) where illegal means such as threats, deception, or bribery are employed.” This implies that the act of bribery is merely an element of the crime of bid-rigging. Furthermore, the defense counsel identified the following view in *People’s Justice: Case Studies*: If a perpetrator bribes another party for the purpose of colluding on bid prices—that is, colludes on bid prices by bribing the tenderer—since only a single act exists, this constitutes a case of imaginary concurrence of offenses, and therefore the more serious offense may be selected for prosecution. Through thorough research, the defense counsel engaged in repeated communication with the prosecutor and submitted written defense arguments. Ultimately, the prosecution filed charges against Zhao Moumou for the single offense of collusion on bid prices.
During the first-instance trial, through communication with the judge, the court agreed to convict and sentence the defendant on the single charge of bid-rigging.
III. Meticulous Defense and Humanistic Care: Achieving Effective Defense
Building upon the core achievements of the defense, the defense counsel argued from the perspective of specific social harm that, although bid-rigging occurred in this case, the conduct primarily involved requesting “favor” through communication. It did not involve malicious tactics such as forging bid documents or threatening to exclude other bidders. Consequently, the disruption to the order of fair competition was relatively limited. Furthermore, the company had completed the equipment installation in accordance with the contract, the project quality was satisfactory, and no concrete, tangible economic losses were incurred by the tenderer, the state, or the collective; Regarding subjective malice, the defense argued that Zhao’s motive was to meet the company’s operational targets, indicating minimal subjective malice; Furthermore, from the perspective of invoking policies to “protect private enterprises” and achieving a balance between legal and social outcomes, the defense counsel pointed out that Zhao XX is the head of a private enterprise. They elaborated on the status of the project under Zhao’s responsibility, the immense difficulties faced by the enterprise, and the livelihood issues of over a hundred employees. By combining the principle of “adjudicating cases in accordance with the law” with the spirit of the “Six Stabilities and Six Guarantees” policy, the defense fully explained to the judicial authorities that imposing a custodial sentence on Zhao XX would lead to corporate disorder, project stagnation, a chain of negative consequences including employee unemployment. This successfully persuaded the judicial authorities to take into account the policy of protecting private entrepreneurs. Ultimately, the court of first instance sentenced Zhao to one year of fixed-term imprisonment and a fine of 10,000 yuan for the crime of bid-rigging.
From the grim initial situation—involving over 22 million yuan and the prospect of cumulative sentencing for multiple offenses—to the successful outcome of a suspended sentence for a single charge and the company’s revival, attorneys Yan Huainan and Zhou Sai used their professionalism, wisdom, and sense of responsibility to restore hope for the client and his enterprise. The success of this case once again demonstrates that in criminal defense, professionalism, meticulousness, and diligence are always the only path to justice.
