On the afternoon of July 3, 2026, the “100 Criminal Defense Lawyers Forum” symposium, organized by the Second Criminal Law Department of King&Capital Law Firm, was successfully held. The event focused on the core challenges in the judicial determination and defense of new and covert official misconduct cases. Senior partners Wang Jiuchuan, Zang Desheng, Xia Jun, Nie Sufang, and Weng Xiaoping of King&Capital Law Firm delivered in-depth practical presentations in succession, with Zheng Xuan, an attorney at King&Capital Law Firm, serving as the moderator.
Drawing on his many years of experience defending clients in official misconduct cases, Attorney Wang Jiuchuan delivered a systematic presentation on the rules for determining subjective knowledge in new and covert forms of official misconduct. Attorney Wang first explained the characteristics of “new” and “covert” criminal behaviors, emphasizing that “new” crimes primarily involve innovative methods of channeling benefits through financial and technological tools and other means, while “covert” crimes take the form of legitimate transactions that conceal underlying exchanges of power for money. He noted that these criminal patterns are not new phenomena; however, they have garnered significant attention following the expansion of oversight investigations to cover all areas—particularly after the release of the 2026 Judicial Interpretation on Embezzlement and Bribery. After interpreting the theory of subjective awareness, Attorney Wang drew on his experience handling multiple cases to compare and contrast the two primary approaches used by judicial authorities in determining subjective awareness: direct proof and criminal presumption. He analyzed the current practice in which investigative authorities heavily rely on testimonial evidence—particularly confessions—to reach conclusions in such cases, and addressed common issues regarding the application of presumption rules in three scenarios: prior agreements, mutual consent during the transaction, and the receipt of benefits after the fact. At the same time, he identified the core dimensions through which objective facts inform the presumption of subjective awareness, covering multiple aspects such as the transactional background and authenticity, consideration and risk allocation, and eligibility requirements. Attorney Wang emphasized that defense attorneys must proficiently apply a review method that moves from the objective to the subjective to counter the presumption of guilt; at the same time, they must place greater importance on the role of eliminating non-relevant evidence and gathering evidence to enhance the proactivity of the defense.
Attorney Zang Desheng conducted an in-depth analysis of the prominent issue in current judicial practice where the broad interpretation of the element of “abuse of official position” in official duty crimes has led to an increase in “new types of covert official duty crimes.” He pointed out that there are numerous irregularities in the determination of such cases in current judicial proceedings: in some cases, authorities directly presume the existence of a power-constraint relationship based solely on the perpetrator’s public office status, arbitrarily conflating normal private social interactions with acts of trading power for money; At the same time, there are instances of retroactive accountability for long-term benefits occurring many years after the conclusion of official duties, which directly blurs the boundaries between disciplinary violations, civil business activities, and criminal bribery offenses, resulting in imbalanced judicial rulings and inconsistent standards across different regions. In response to these issues, Attorney Zang Desheng proposed a systematic approach to criminal defense from both substantive and procedural perspectives. At the substantive defense level, he proposes four core defense points: First, examine the scope of official authority by obtaining complete appointment documents, precisely verifying the scope of the defendant’s statutory authority, and strictly distinguishing between procedural administrative positions and those with substantive decision-making and disposal powers; second, examine the authenticity of the transaction by conducting a thorough review of core facts—such as actual capital contributions, operational management, and risk sharing—in cooperative investment projects to distinguish between fictitious commercial collaborations and genuine market-based business activities; third, examine the foundation of the relationship by comprehensively reviewing the long-term interaction records between the parties involved, clearly defining the core motives behind the transfer of property, and distinguishing between private personal exchanges and exchanges of official authority for personal gain; fourth, examine the source of information to determine whether it falls within the scope of publicly available information. At the procedural defense level, Attorney Zang emphasized the need to comprehensively and fully submit counter-evidence in response to the prosecution’s “presumption of guilt” case-handling logic; Regarding issues such as interference in case handling at the local level, he noted that, when necessary, a request for cross-jurisdictional jurisdiction should be filed in accordance with the law to ensure the fair handling of the case. He stated that professional criminal defense can effectively curb the tendency to over-criminalize official misconduct. Through precise defense in individual cases and standardized adjudication, it can gradually promote the unification of adjudication standards for official misconduct cases nationwide. While strictly implementing anti-corruption policies, it upholds the fundamental principle of criminal law—that crimes and punishments must be prescribed by law—thereby achieving judicial fairness and legal consistency.
Attorney Xia Jun focuses on new types of covert bribery cases involving cooperative investments and business opportunities. Drawing on her practical experience, she has developed a defense strategy that combines theoretical depth with strong practical applicability. She points out that in bribery cases involving joint investments and business opportunities, bribery acts are often intertwined with commercial operations, blurring the line between such acts and normal commercial investment activities. In these cases, there remains significant controversy regarding the determination of the nature of the bribery acts and the calculation of the bribe amount, which implies that there is a certain degree of room for defense in practice. Regarding bribery involving joint investment, she advocates categorizing various scenarios and dissecting the key defense points one by one. The defense should focus on verifying whether the defendant’s official duties were involved, whether they exploited the conveniences of their official position, and whether they sought benefits for others. By considering multiple factors—such as whether actual capital was contributed, whether the defendant participated in management and operations, whether the distribution of investment returns was reasonable, and whether the returns were commensurate with the risks—a comprehensive analysis and assessment of the authenticity of the joint investment should be conducted; Furthermore, when mounting a defense regarding the amount of bribes, it is essential to analyze and break down the nature of the property received by the defendant, excluding any portions that do not fall within the scope of a “power-for-money” transaction. Defense counsel should advocate for a precise determination of the bribery amount to maximize the protection of the client’s legitimate rights and interests. She emphasized that in bribery cases involving expected returns from business opportunities, the defense should focus on the equivalence of the transaction—examining whether the defendant’s profits stem primarily from the exchange of power or from business costs such as capital and labor inputs; attention should also be paid to the proportionality of returns, taking into account factors such as the openness of the business opportunity and the ratio between actual investment and final profits; and the level of risk borne, examining whether the perpetrator is required to assume market operational risks; if there are uncertain risks, it will be difficult to establish a quid pro quo relationship in the exchange of power for money.
Attorney Nie Sufang shared insights on the evolution of judicial approaches and practical controversies surrounding equity and investment-based bribery cases. She categorized such cases in practice into four major types: no capital contribution and no participation in management; capital contribution but no participation in management; no capital contribution but participation in management; and investments in pre-IPO shares with massive expected returns. Drawing on judicial rulings from previous years and changes in legal provisions, she analyzed shifts in the logic of judicial characterization and quantification across these scenarios. Regarding scenarios involving capital contribution without participation in management, Attorney Nie summarized typical judicial determinations of “nominal investment”—such as capital withdrawal, insufficient capital contribution, failure to bear business risks, returns detached from the enterprise’s profits and losses, and excessive dividend distributions—and elucidated the judicial reasoning through practical case law. For special cases involving no capital contribution but genuine contributions of labor and management expertise, she distinguishes the legal differences between capital contributions in partnerships and those in corporate entities, arguing that the core of the defense lies in distinguishing the value of the labor provided and determining whether a transaction involving the exchange of rights for money is present. Regarding bribery cases involving pre-IPO shares, Attorney Nie reviewed the evolution of judicial determinations and legal provisions. Through case analysis, she demonstrated the grounds for conviction commonly used by judicial authorities and presented corresponding counter-arguments for each point. She also raised a practical challenge—whether bribery involving pre-IPO shares can be established when there is no explicit request for favors and only an administrative relationship exists—sparking in-depth discussion among the attending attorneys.
Attorney Weng Xiaoping focused his presentation on the characterization of intermediaries in bribery crimes and the review of evidence. From an evidentiary perspective, he outlined the potential charges an intermediary might face and clarified the key points for verifying evidence for each type of charge. In the section on determining joint complicity in bribery, using a case involving the division of proceeds from construction brokerage as an example, he explained the methods for reviewing three key types of evidence—prior collusion, the conveyance of requests, and the agreement to divide illicit proceeds—and clarified the distinction between the total amount involved in the case and the actual personal gains of the individuals involved. In the section on joint bribery, using a case where an intermediary was commissioned to have a fugitive’s arrest warrant revoked as an example, he delineated the boundaries between the characterization of mere matchmaking and that of full-scale planning of a bribery scheme; In the section on bribery through the use of influence, he highlighted that the core criterion for distinguishing accomplices is whether the government official was aware of the receipt of funds and whether there was an agreement to share the proceeds; in the section on brokerage of bribes, drawing on a case where a second-instance ruling overturned a construction intermediary case, he explained that mere facilitation without a conspiracy to share proceeds can be classified as brokerage of bribes, and that privately received gratuities are not included in the bribery amount. Finally, he outlined the key points for identifying evidence where an intermediary fabricates connections, conceals the progress of matters, or misappropriates property—acts that constitute fraud—thereby establishing a comprehensive practical framework for evidence review in intermediary cases and providing clear guidance for handling similar cases.
At the conclusion of the event, host Zheng Xuan provided a comprehensive recap and summary of the presentations by the five attorneys. The entire seminar progressively analyzed the practical challenges across the full chain of current new types of covert official misconduct, ranging from the presumption of subjective knowledge and the boundaries of official authority to the differentiation of investment and equity cases and the review of evidence involving intermediaries. He noted that the presentations, drawing on a wealth of firsthand case precedents, directly addressed pain points in judicial practice—such as the over-criminalization of offenses and ambiguous legal characterizations—and offered immediately actionable substantive and procedural defense strategies. The seminar concluded successfully amid 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 criminal defense practice, this column features multidimensional dialogues among senior attorneys, 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.
