On the afternoon of May 29, 2026, the “100 Voices on Criminal Defense” symposium, organized by the Second Criminal Law Department of King&Capital Law Firm, was successfully held. The event focused on the challenges and solutions in defending against official misconduct cases against the backdrop of the implementation of the new “Interpretation on Embezzlement and Bribery (II).” Qian Hao, an attorney at Beijing King&Capital Law Firm, served as the moderator. Zhu Yonghui, Director of Beijing King&Capital Law Firm, delivered the opening remarks. Senior partners Men Jinling, Xia Jun, Yan Huainan, Associate Professor Wang Kangqing from the School of Criminal Justice at China University of Political Science and Law, and Meng Fen, a partner at Beijing King&Capital Law Firm, delivered in-depth practical insights. The event concluded with an interactive Q&A session, drawing active participation from numerous legal professionals both on-site and online.
Attorney Zhu Yonghui first expressed his gratitude to the guests in attendance, the legal professionals participating online, and the expert speakers. He pointed out that the challenges of providing full-chain defense for official misconduct cases are becoming increasingly apparent. During the supervision and investigation phase, lawyers are unable to intervene and can only provide legal consultation to family members; in the review and prosecution phase, plea agreements are generally reached in advance, and sentencing recommendations are finalized early. Furthermore, a defendant’s decision not to appeal after the first-instance trial is often viewed as a sign of repentance, leading to a significant decline in the rate of appeals to the second instance. Additionally, sentence reductions during incarceration are deeply tied to the defendant’s admission of guilt and expression of remorse. He further explained that while the new Prison Law explicitly states that filing appeals does not affect sentence reductions, the actual implementation of this provision remains to be seen. Since the issuance of the “Interpretation on Embezzlement and Bribery (II),” there has been intense discussion in legal practice, and King&Capital Law Firm has already conducted multiple internal study sessions. Finally, he noted that the five keynote speakers at this seminar all possess both theoretical expertise and frontline case handling experience. He expressed hope that they would share practical insights in light of the new regulations, helping colleagues overcome challenges in defending against official misconduct cases.
Attorney Men Jinling focused on legislative changes regarding the equal treatment of public and private property offenses under the new regulations. She pointed out that while the new regulations align sentencing for crimes such as embezzlement of public funds with that for corruption offenses—seemingly achieving formal equality—there are fundamental differences between public property and private property in terms of legal interests and social harmfulness. A one-size-fits-all sentencing approach makes it difficult to achieve judicial fairness. Drawing on a real-life case she personally handled—involving a state-owned enterprise holding a 35% stake and a 4.43 million yuan embezzlement—she argued, based on the 2001 judicial interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate, that the principle of applying the older, more lenient law should apply. She contended that the new regulations should not be applied retroactively to increase the offender’s sentence. At the same time, she questioned the provision allowing the seizure and confiscation of real estate based solely on an agreement to accept or offer bribes, arguing that this rule relies excessively on confessions to determine guilt and conflicts with the property registration system and criminal evidence rules. She emphasized that criminal defense lawyers must adhere to the principle of legality in criminal law, rely on the temporal applicability rules of judicial interpretations, resist the improper retroactive application of judicial interpretations in individual cases, and balance policy and law through case-by-case defense.
Attorney Xia Jun pointed out that a key signal sent by “Interpretation II” is that the practice of “investigating both bribery and bribe-giving together” is being implemented in practice, and the severity of punishment for bribery-related crimes is gradually increasing. She explained that regarding bribery-related crimes, starting from the addition of fines in the “Amendment IX to the Criminal Law” and the strict limitations on the application of special leniency for the crime of bribery, through to "Amendment XII to the Criminal Law (XII), which specified seven categories of aggravating circumstances, and now to the new “Interpretation (II),” which clarifies the standards for conviction and sentencing of bribery-related offenses—the crackdown on bribery is continuously intensifying. In recent years, the number of corporate personnel, particularly actual controllers of private enterprises, suspected of bribery offenses has been gradually increasing. Attorney Xia Jun provides an in-depth analysis of the relevant provisions regarding bribery offenses in Interpretation (II). Drawing on his own case handling experience, he outlines seven key defense strategies for bribery cases, systematically addressing the defense regarding “seeking improper benefits,” the distinction between individual bribery and corporate bribery, the amount involved, the circumstances of soliciting bribes, the admissibility of evidence, arguments regarding aggravating circumstances, and arguments regarding sentencing. By drawing on multiple typical bribery cases, he elaborates on how to effectively apply each defense point, providing a comprehensive practical roadmap for defending bribery cases.
Attorney Yan Huainan pointed out that, while the statutory provisions governing the confiscation of bribery proceeds are well-established—adhering to principles such as the confiscation of the original property and the confiscation of commingled assets based on proportional shares—the disconnect between judicial and supervisory case-handling standards has led to practical disputes. He noted that criminal confiscation is predicated on a conviction, whereas supervisory authorities may, based on supervisory regulations, order parties to surrender assets on grounds of disciplinary violations even before criminal charges are filed. This lower threshold for evidence collection is a key reason why entrepreneurs fear having their assets confiscated without a substantive conviction. He believes a distinction should be made between direct profits from bribery and subsequent operational income. Profits generated through legitimate business operations funded by the perpetrator’s own capital and labor should not be fully classified as illicit gains subject to confiscation. For complex scenarios such as nominee shareholding, property holding in another’s name, or third-party custody of illicit funds, he recommends that lawyers intervene early during the supervisory phase to organize documentary evidence of property ownership and mount a defense based on the doctrine of bona fide acquisition, thereby preventing investigative authorities from confiscating legitimate assets beyond the scope of the case.
Professor Wang Kangqing advocates moving away from mechanical valuation methods and instead determining the value of bribes involving virtual currencies based on the objective circumstances surrounding the case. He categorizes such bribes into two types: those involving the transfer of assets equivalent to cash in the form of digital currencies, which are valued at the market price on the date of receipt; and those where the focus is on the future appreciation of the currency, which are valued based on the actual profit realized at the time of the incident. He explained that such bribery is highly covert and occurs primarily between mid-to-high-level public officials and technical professionals, while it is relatively rare in crimes involving lower-level officials. Drawing on judicial interpretations, he established valuation criteria: priority should be given to the bribe giver’s actual acquisition cost; where the price of a cryptocurrency is in doubt, a professional institution should be commissioned to conduct an appraisal; and where evidence is insufficient, the lower value should be adopted. Finally, he noted that the current virtual currency industry suffers from inadequate regulation, extreme price volatility, and difficulties in on-chain evidence collection, coupled with a lack of relevant appraisal standards. This objectively creates room for defense, with the core strategy being to strip away speculative premiums, penetrate the façade of the cryptocurrency, and restore the true consideration of the exchange of power for money.
Attorney Meng Fen explained that new and covert forms of corruption stem from top-level anti-corruption initiatives. While the Central Commission for Discipline Inspection’s internal evidence-gathering guidelines remain unpublished, the Supreme People’s Procuratorate’s guiding cases have defined typical categories such as arbitrage through fixed-price home sales, inflated trade rebates, and bribery involving returns on pre-IPO shares. She noted that such cases utilize a market-oriented commercial façade, with bribery amounts fluctuating with market conditions. Convictions rely heavily on the defendant’s confessions. Judicial practice has seen instances where cases from years past were retroactively prosecuted due to policy adjustments; however, the Supreme People’s Court and the Supreme People’s Procuratorate have maintained a cautious legislative stance. To establish criminal liability for accepting bribes in the form of pre-IPO shares, four strict requirements must be met, including high certainty of returns and the closed, scarce nature of the transaction. She noted that in practical defense, lawyers can gather evidence focusing on the openness of investment opportunities and the fact that returns stem from independent business operations to sever the causal link between profits and the exercise of public office. Even if investigative authorities classify such acts as “new forms of corruption,” court rulings must strictly adhere to the elements of a crime and the rules of criminal evidence.
Following the keynote presentation, the session moved to a live Q&A. Attorney Meng Fen posed a practical question to Attorney Men Jinling: In cases involving new forms of bribery, such as those related to pre-IPO shares or large-scale financial transactions, where documentary evidence of fund flows is complete and clear, but prosecuting authorities rely on the confessions of both the bribe-giver and the bribe-taker to directly classify normal commercial transactions as bribery, what effective defense strategies are available to defense counsel in such situations?
In response to the question, Attorney Men Jinling provided a detailed explanation centered on the principle of giving priority to objective evidence, offering defense strategies from two practical angles: First, dissecting general statements and refusing to allow cases to be decided based on vague, broad statements; second, distinguishing between objective financial facts and subjective legal evaluations. Attorney Men Jinling further illustrated her points with a case from her own practice: A client spent seven years helping a third party recover an old debt and received a payment transfer the day after the funds were repaid. The prosecution relied on confessions to charge the client with bribery. The defense counsel obtained objective materials, such as court enforcement documents and transaction records of the debt repayment, to prove that the funds were payment for services rendered, thereby refuting the bribery charges based on the logic of the funds and the timing of the transactions. Finally, she emphasized that the defense must adhere to the fundamental principle of prioritizing objective evidence and must not allow subsequent subjective confessions to negate prior legitimate commercial transactions.
Moderator Qian Hao delivered closing remarks, stating that this seminar addressed cutting-edge challenges in official misconduct cases following the implementation of the “Interpretation on Embezzlement and Bribery (II).” It provided a comprehensive analysis of five key practical pain points—the statute of limitations for judicial interpretations, the criminalization of bribery, asset recovery rules, the valuation of virtual currencies, and new forms of covert corruption—while balancing legislative context, judicial realities, and frontline defense practices. He suggested that the attending lawyers apply the defense strategies shared by the speakers to their casework, leveraging the new regulations and legal principles to identify opportunities for defense. The seminar concluded successfully after in-depth exchanges and discussions.
“100 Voices on Criminal Defense” is a column dedicated to the exchange of criminal defense practices, meticulously crafted by the Second Criminal Law Department of King&Capital Law Firm. It focuses on cutting-edge developments and core issues in China’s criminal defense field. Structured around practical criminal defense work, this column features multi-dimensional dialogues among senior lawyers, experts, scholars, and judicial practitioners to deeply analyze key topics such as legal controversies in high-profile cases, strategies for handling complex cases, defense techniques for new types of crimes, and criminal risk prevention and control. The content covers specialized areas such as the intersection of substantive and procedural law, practical experience in evidence presentation and rebuttal, and strategies for substantive trials. It not only showcases the intellectual exchange inherent in the art of criminal defense but also distills proven practical wisdom.
