Editor’s Note
On the afternoon of August 1, 2026, the 22nd “Top Ten Criminal Defense Lawyers” Forum was successfully held at Beijing Zhongtong Law Firm, focusing on the topic “Practical Challenges in Property Defense and Legislative Improvements.”
Speakers at the forum included: Yang Kuangsheng, Managing Partner of Beijing Zhongtong Law Firm; Qian Lieyang of Beijing Zihua Law Firm; Xu Lanting, Honorary Managing Partner of Beijing Junyong Law Firm; Liu Weidong, Managing Partner of Beijing Guanheng Law Firm; Wang Zhaofeng, Managing Partner of Beijing Zhoutai Law Firm; Zhao Yunheng, Honorary Managing Partner of Beijing Xinglai Law Firm; Mao Lixin, Honorary Managing Partner of Beijing Shangquan Law Firm; Zhu Yonghui, Managing Partner of Beijing King&Capital Law Firm; Mao Hongtao, Director of the Management Committee at Beijing Dongwei Law Firm; Cheng Xiaolu, Chair of the Partners’ Meeting at Beijing Xinglai Law Firm; and Zhao Chunyu, Director of the Criminal Law Committee at Beijing Yingke Law Firm, among others.
The forum was moderated by Wang Bo, a partner at Beijing Shangquan Law Firm, and Yang Dakang, host of the legal media platform “Dakang Lounge.” The forum also invited Professor Wang Zhixiang, Director of the Institute of Foreign and Comparative Criminal Law at Beijing Normal University, and Professor Guo Shuo, Dean of the Capital Research Institute (Beijing Legislation Research Institute) at China University of Political Science and Law, to serve as commentators, and Professor Fan Chongyi, Honorary Dean of the Institute of Procedural Law at China University of Political Science and Law, to deliver the concluding remarks.
The following is the keynote speech delivered at the forum by Attorney Zhu Yonghui, Director of Beijing King&Capital Law Firm, published here for our readers’ benefit.
(Compiled and edited by trainee attorney Ma Yizhe)
In recent years, as the fight against corruption has continued to deepen, the forms of bribery have become increasingly covert. Among them, a new type of bribery—in which “providing business opportunities” replaces “direct delivery of property”—accounts for an increasingly large proportion of official misconduct cases. On the surface, such cases appear to be normal market activities such as equity investments, partnerships, or business operations; in substance, however, they involve the exchange of public power for the financial benefits inherent in business opportunities. The “Interpretation on Embezzlement and Bribery (II),” which took effect on May 1, 2026, provides a more detailed classification of such cases. When handling such cases, the core challenge facing defense counsel often lies not in the dispute over whether the act “constitutes a crime,” but in clarifying the meaning of the term “property”—is what was received an opportunity, or is it property? If it is deemed property, how should the amount be calculated? Today, I would like to share some of my thoughts centered on the theme of “property defense,” drawing on the latest regulations and typical case law.
I. The Introduction and Categorization of Bribery Involving Business Opportunities
(1) Legal Basis
To fully understand the legal framework of bribery involving business opportunities, we must start with the law itself. Articles 385 and 386 of the Criminal Law establish the basic structure of the crime of accepting bribes; Article 12 of the “Interpretation on Embezzlement and Bribery” further clarifies that “property” in bribery offenses includes property-related benefits, which serves as the foundation for incorporating “business opportunities” as a form of bribery. Meanwhile, the “Interpretation on Embezzlement and Bribery (II)” provides further details on new issues such as bribery involving expected returns and the valuation of specific property.
Most importantly, Paragraph 2 of Article 11 of the “Interpretation on Embezzlement and Bribery (II)” establishes a crucial benchmark principle: “Where the expected returns from receiving stocks or equity interests constitute a form of bribery and a crime is committed, the amount of the bribe shall be determined based on the actual profit realized at the time the case was uncovered; if no actual profit had been realized at that time, the amount of the bribe shall generally be determined based on the premium between the market price of the assets involved and the payment price at the time the case was uncovered.”
(II) Criteria for Determination
So, how should one distinguish between a business opportunity and bribery involving a business opportunity in practice? Generally speaking, bribery involving a business opportunity has three non-market characteristics: specificity of the recipient, exclusion of risk, and the exchange of power for money. Among these, the exclusion of risk is the most critical: in general commercial activities, acknowledging and bearing market risks is a universal rule. However, in bribery involving commercial opportunities, normal market risks are eliminated, allowing state officials to “enjoy the returns without bearing the risks.” Therefore, I believe that the exclusion of risk should serve as a key point of entry for defense counsel handling such cases—as long as market risks have not been genuinely eliminated, the opportunity retains its market attributes and should not be deemed a purely pecuniary transfer of benefits.
(3) Categorization Based on Risk Structure: Principal-Protected Type and Investment Type
Based on the above criteria, when handling such cases, one should first assess the risks associated with the “opportunity” and classify it as either “principal-protected” or “investment.” This distinction directly determines the main points of contention in a “property-based defense”: for the former, the focus is primarily on the amount involved in the crime; for the latter, it may be whether the facts constitute a crime.
II. Principal-Protected Type
(1) The Essence of “Guaranteed Returns Regardless of Market Conditions”
In the principal-protected type, while the arrangement is nominally an investment, equity participation, or partnership, both the bribe-taker and the bribe-giver tacitly agree that the principal and returns have been predetermined, and profitability is unrelated to market risks. Criminal Trial Reference No. 1490, “The Zhang Jie Bribery Case,” summarizes this type of situation as a “guaranteed return regardless of market conditions” cooperative investment—Zhang Jie made a symbolic investment of 300,000 yuan; the company never distributed dividends and operated at an overall loss, yet the bribe-giver paid him a fixed annual “dividend” of 300,000 yuan, which came from the bribe-giver’s personal contingency fund and was unrelated to the company’s operations. The court held that this did not meet the basic characteristic of modern enterprises—clear delineation of rights and responsibilities—and was, in essence, a transaction involving the exchange of power for money, thus constituting bribery.
(2) Defense Strategy for “Guaranteed Returns Regardless of Market Conditions” Bribery: Acknowledge the Legal Characterization and Seek to Reduce the Amount
From a defense perspective: In cases classified as “capital preservation” bribery, there is essentially no room for an acquittal. However, there remains room for defense regarding the amount: Any genuine capital contribution by the defendant should be deducted—in the Zhang Jie case, the final determination of bribery was 4.7 million yuan rather than the 5 million yuan charged precisely because Zhang Jie had actually contributed 300,000 yuan in principal; At the same time, even if the act is classified as bribery, a distinction must be made between the principal amount of the bribe and the proceeds derived therefrom. The key points of the ruling in the Zhang Jie case noted that for individuals who did not actually contribute capital but participated in business management, operating profits may be deemed proceeds of the bribe, and the labor compensation to which the perpetrator is entitled may be appropriately deducted from such proceeds. It is evident that even in the most unfavorable characterization of a “principal-protected” bribery offense, defense counsel can base their defense on the amount involved to reduce the total amount of the offense.
III. Investment-Type
The “investment-type” refers to cases where the defendant has made genuine capital contributions and engaged in actual business operations, and what they received was merely an “opportunity”—the profitability of which depends on subsequent market conditions and business performance, with profitability itself being contingent. In other words, market risk is not automatically excluded in such cases; therefore, they should be distinguished from “principal-protected” cases. The general defense strategy for such cases is as follows: In purely investment-based cases, the object of the bribery should be limited to the “opportunity” itself, and the amount should, in principle, be fixed at the “value of the opportunity at the time of receipt”; all subsequent profits from business operations cannot be included across the board. This aligns with the determination set forth in Article 11, Paragraph 1 of the “Interpretation on Embezzlement and Bribery (II).” The reason why the second paragraph of this article—which states that “the amount shall be determined based on the actual profits at the time the case was uncovered”—should not be applied is that, in investment-based bribery cases, business activities conducted after the opportunity is granted are lawful acts; subsequent profits should not be regarded as part of the bribery amount. Therefore, when handling such cases, three key issues must be addressed.
(1) Distinguishing Between Opportunity and Profits
In investment-type cases, the perpetrator receives only an “opportunity”—such as eligibility to purchase shares, project information, or a business license. While the opportunity itself has market value, it is by no means equivalent to the total profits generated from the subsequent operation of the project. The questions are: How does one assess the expected profits under a scenario “without this opportunity”? And how does one prove that today’s assets are the inevitable result of that original opportunity? These questions often cannot be answered in individual cases. Since these questions cannot be answered, the total proceeds should not be directly presumed to constitute the amount of the bribe. Criminal law does not permit the use of ex post facto business outcomes to retroactively determine the value of the quid pro quo. Therefore, even if a bribery offense is established, the scope of the offense should be limited to the portion of the consideration corresponding to the “value of the opportunity,” rather than the total proceeds from the business operations—this is precisely the intended meaning of “taking the value at the time of receipt as the standard.”
(2) Deducting Actual Capital Contributions and Their Normal Returns
The fundamental distinction between investment-based and principal-protected schemes lies in the fact that the defendant invested real capital and assumed real market risks; this portion of the investment and its normal returns should be deducted. The calculation formula provided in the Zhang Jie bribery case is highly instructive: Amount of bribery = Actual profits − Amount of capital contribution − Returns due on the capital contribution. Accordingly, actual capital contributions must be deducted; the normal returns that the capital should have yielded may be deducted by referring to the rates of return on similar investments; and the labor compensation earned through actual participation in business operations should also be deducted from the proceeds. It should be noted that there is still no uniform standard in practice regarding how to calculate “returns due on capital contributions” or how to quantify the contribution rate to business operations. The absence of such standards itself demonstrates that one cannot simply use the “final amount received” as the sole yardstick. When standards are unclear, in accordance with the principle of resolving doubts in favor of the defendant, the amount deducted should be interpreted leniently rather than strictly.
(3) Examining the Causal Relationship Between Capital Contribution and Business Appreciation
This is the point I most wish to emphasize. Consider the following scenario: Two government officials, A and B, are both offered the opportunity by a client to invest in the same project, with identical terms and consideration. However, Person A manages the investment skillfully and earns 5 million yuan in three years, while Person B, lacking business acumen, earns only 500,000 yuan. If the amount of bribery is uniformly determined based on the “final net amount received,” the result would be that Person A is found to have accepted a bribe of 5 million yuan and Person B a bribe of 500,000 yuan—a tenfold difference in the amount of the crime, which could lead to a ten-year difference in sentencing! Yet the “opportunity” each accepted at the outset was identical; there was no difference in their subjective malice or the nature of the power-for-money transaction. Merely because their subsequent business acumen differed, the assessment of their actions varies by a world of difference—a situation that clearly defies basic logic and common sense.
It is evident that this approach of imposing different penalties for the same crime clearly violates the fundamental judicial principle of “proportionality between crime, culpability, and punishment.” In such cases, the object of the bribery is the “business opportunity” itself, and its value should not fluctuate based on the recipient’s subsequent business performance. Using “final proceeds” as the sole yardstick amounts to treating third-party factors—such as market risks and business acumen—as well as the defendant’s lawful labor as elements of the defendant’s culpability. This completely disregards the causal relationship between the act and the outcome, constituting a flawed method of attribution that substitutes the result for the offense itself. Therefore, when determining the amount of bribery, the portion commingled with market risks and business contributions must be excluded.
IV. Defense Position and Methods
(I) Three Approaches in Judicial Practice
Regarding the criminal amount for this type of bribery, there are three approaches in judicial practice. The first is the “full inclusion” approach, commonly adopted by investigative authorities: as long as the opportunity stems from the exercise of power, all subsequent gains are counted as bribes, on the grounds that the causal chain is complete. The problem with this approach is that it confuses the “consideration for the opportunity” with “business profits,” thereby unduly expanding the scope of bribery assessment into the defendant’s legitimate business operations. The second approach is the “complete separation” typically advocated by defense counsel: opportunities are treated as opportunities, and business operations are treated as business operations; business activities conducted after obtaining the opportunity are independent and lawful civil acts, and the corresponding profits are unrelated to bribery. This position is logically consistent but is difficult for prosecuting authorities to accept in the current judicial environment. The third approach is “proportional deduction”: it acknowledges that the proceeds contain a component representing the consideration derived from the opportunity, but argues that actual capital contributions, normal returns, and business contributions should be deducted, with the amount of bribery determined solely based on the portion corresponding to the exchange of power for money. Of the three, I believe the third approach is the most practically feasible at present.
(2) In Principle, a Clear Distinction Should Be Made; Compromise Is the Bottom Line
My basic position is that, in principle, the value of the opportunity should be distinguished from business profits, for three reasons:
First, from the perspective of the protected legal interest, the crime of accepting bribes infringes upon the incorruptibility of official duties—not the property of the state or individuals, nor market order. Profits obtained through legitimate business operations following the acquisition of an opportunity are the result of market activities; categorically classifying them all as bribery amounts to improperly expanding the scope of protection afforded by the crime of accepting bribes into the realm of property.
Second, from the perspective of the principle of liability, business activities conducted after obtaining an opportunity are independent and lawful acts. To classify the fruits of all subsequent lawful efforts as part of the bribery amount solely because there was an unlawful act upstream violates the basic principles of criminal liability and constitutes double counting.
Third, from the perspective of the principle of proportionality and the principle of criminal law restraint, when the amount of bribery is clearly disproportionate to the total project proceeds, classifying the full amount as bribery exceeds the function of “restoring the consideration” and effectively constitutes a de facto hidden additional penalty. Professor Zhou Guangquan has proposed incorporating the constitutional principle of proportionality into criminal law, emphasizing appropriateness, necessity, and proportionality in the narrow sense; a crude “one-size-fits-all” approach to indirect proceeds may in itself conflict with the requirement of necessity under the principle of proportionality.
Of course, a “complete severance” is difficult to widely adopt at present. Therefore, when the principle cannot be fully realized, we should at least adhere to the bottom line of “proportional deduction”: even if such benefits are recognized, their respective weights must be calculated and allocated proportionally; under no circumstances should the final amount be equated directly with the amount of bribery through a one-size-fits-all approach.
(3) Several Key Points Regarding Defense Strategies
First, make every effort to prove that the defendant genuinely assumed risks
As long as the defendant made genuine capital contributions, genuinely participated in management, and genuinely bore the risks of market gains and losses, the “risk exclusion” criterion is not met, and the act should not be deemed bribery. Whether the defendant independently managed the business and bore the risks is central to determining whether bribery has occurred. If genuine losses resulted from poor management, the defendant objectively did not obtain any property-related benefits and, in principle, should not be charged with bribery. From the perspective of “risk exclusion,” this directly impacts the characterization of the case as either bribery involving the acceptance of a business opportunity or a genuine investment.
Second, Exclude the Investment Amount and Legitimate Returns on Investment, and Deduct the Defendant’s Labor Compensation
Even if the case is characterized as bribery involving the acceptance of a business opportunity, the issue of the amount remains significant. The formula established in the Zhang Jie bribery case should be applied to calculate the amount: “Amount of bribery = actual profits – investment amount – returns due on investment.” Actual investments, returns due on investment, and compensation for business operations should be deducted item by item to eliminate any “inflated” amounts; simultaneously, it is argued that the bribery should be determined based on the value of the opportunity at the time of receipt, rather than the final amount realized afterward.
Third, Clarify the Burden of Proof
The prosecution bears the burden of proving the “guaranteed returns regardless of market conditions” and the calculation of the amount; when the amount cannot be “clearly calculated,” the burden of proof must not be shifted to the defendant, nor should it be presumed that all proceeds constitute bribery. In cases of doubt regarding the nature of the benefits, the benefit of the doubt should be given to the defendant.
V. Extension of Asset Defense: Limiting the Scope of Confiscation
Asset-based defense extends not only to conviction and sentencing but also to the confiscation phase of enforcement. The Criminal Law’s provisions on the confiscation of illicit gains emphasize that “all property constituting the illicit gains of criminals shall be confiscated”; meanwhile, judicial interpretations regarding the enforcement of financial aspects of criminal judgments further clarify that, for assets formed through joint investment or property acquisition using both illicit proceeds and other lawful property, only “the share corresponding to the illicit proceeds and their returns” shall be confiscated. Accordingly, the core of the defense during the confiscation phase is to clarify “which assets constitute illicit gains and which represent the defendant’s lawful principal and legitimate returns.” The scope of confiscation directly affects the defendant’s property rights and must never be treated as a muddled account.
For example, consider the case of purchasing a home at a below-market price (as detailed in a relevant case published on the website of the Central Commission for Discipline Inspection and the National Supervisory Commission): The amount of the bribe is the difference between the market price and the actual purchase price. Any appreciation in the property’s value upon subsequent sale is recognized as “proceeds” only to the extent that the bribe constitutes a proportion of the property’s value—not as a new bribe. This approach illustrates the point clearly: the amount of the bribe and the proceeds must be strictly distinguished; portions of mixed assets that stem from lawful investments or legitimate business operations should not be subject to confiscation. The “Judicial Interpretation on Embezzlement and Bribery (II)” also emphasizes, in refining the rules for the confiscation of illicit gains, that confiscation must be carried out in accordance with the law and must never allow criminals to profit from it. However, the flip side of “confiscation in accordance with the law” is precisely that the state must not confiscate a defendant’s lawful property beyond the scope of illicit gains. These two principles are not mutually exclusive; together, they define the reasonable boundaries of confiscation.
Translated with DeepL.com (free version)
