On October 17, the First Regular Forum on the Defense of Broadly Defined Official Duty Crimes, organized by Yinghe Law Firm, was successfully held at the China Lawyers Museum. Several attorneys from the King&Capital Research Center for the Defense of Official Duty Crimes were invited to attend the event and deliver keynote speeches. Attorney Xia Jun, Director of the King&Capital Research Center for Defense Against Official Duty Crimes, along with Deputy Directors Yan Huainan and Meng Fen, and Secretary-General Zhang Pengpeng, were invited to attend and deliver keynote presentations, sharing their defense strategies and practical experience on cutting-edge issues related to official duty crimes.
Attorney Xia Jun, Director of the King&Capital Research Center for Defense Against Official Duty Crimes, focused his presentation on “Effective Defense Strategies for Cooperative Investment-Type Bribery Cases.” Attorney Xia Jun pointed out that, in the past, the core criterion for distinguishing such cases was “whether an actual capital contribution was made”; if a genuine investment existed, the defendant could be acquitted. however, current judicial practice has shifted toward a “piercing the corporate veil” approach—cases where there is genuine capital contribution but no participation in operational management, where the investor merely enjoys returns without bearing risks (“guaranteed returns regardless of market conditions”), or where the profits obtained are significantly higher than the proportion attributable to the capital contribution, or are unrelated to the company’s operational performance, may be deemed bribery offenses, and the scope for exoneration is increasingly narrowing.
Based on this, Attorney Xia Jun proposed effective defense strategies for such cases: First, examine whether official duties were involved, assessing whether “taking advantage of one’s official position” and “securing benefits for others” can be established, while taking care to prevent the scope of subordinate or controlling relationships from being unduly expanded; second, examine whether the joint investment is genuine, making a comprehensive judgment based on multiple factors such as whether actual capital was contributed, whether the investor participated in business management, whether the distribution of investment returns was reasonable, and whether returns were commensurate with risks; Finally, attention should be paid to the determination of the amount of bribery. In practice, this should be assessed on a case-by-case basis: if the perpetrator made an actual capital contribution, the amount of bribery may be calculated as “actual returns minus the amount contributed and the returns due on that contribution”; if the perpetrator made no actual capital contribution, the amount contributed on their behalf by the person seeking favors constitutes the amount of the bribe; if the person seeking favors also made no contribution, the amount of property received by the perpetrator constitutes the amount of the bribe.
At the conclusion of his presentation, Attorney Xia Jun emphasized that, in cases involving new and covert official misconduct, the significance of a defense lies in piercing through the facade of complex transactions to restore legal and factual truth, clarifying whether a “power-for-money” exchange occurred, ensuring that the client receives a punishment commensurate with the crime, and striving to achieve both procedural and substantive justice. “No matter when, a lawyer’s sacred duty is to exhaust all legal avenues to protect the client from undue prosecution.”
Attorney Yan Huainan, Deputy Director of the King&Capital Research Center for Defense in Official Duty Crimes, delivered a keynote presentation titled “Characteristics, Identification Challenges, and Methods for New and Covert Official Duty Crimes.” Attorney Yan Huainan summarized the prominent features of new forms of corruption as five “-izations”: the concealment of the perpetrator, using spouses, children, drivers, or classmates as “straw men”; the indirect exercise of power, substituting direct project approvals with dinner gatherings, introductions, or subtle hints; the enjoyment of benefits is externalized, with instructions given to the person making the request to pay or donate to a third party; the exchange of power for money is disguised as civil transactions, packaged through high-interest loans, fake job offers, sham real estate swaps, and losses at the gambling table; and the subject matter is virtualized, with intangible benefits such as business opportunities, IOUs, expected returns, and even tailor-made renovations serving as consideration—forming a composite form characterized by “diverse benefits, a severed link between power and money, and deeply concealed intent.” Based on this, Attorney Yan Huainan pointed out that identifying new forms of corruption and hidden corruption faces three major challenges: subjective intent is deeply concealed, rendering traditional confession-based models ineffective in the absence of confessions; the nature of these acts hovers on the fringes of disciplinary and legal boundaries, making the rigid application of statutory provisions prone to the fallacy of “no applicable law”; and the virtualization of bribery objects and the severing of the link between power and money create difficulties in the accurate application of disciplinary and legal provisions.
In response, Attorney Yan Huainan shared three approaches for determining new forms of corruption and hidden corruption: using the “Three Constants”—common sense, common sentiment, and common reason—combined with the “Two Principles”—logic and rules of experience—to infer subjective intent; employing a “penetrating” mindset to pierce the veil of legality in civil and commercial matters; and employing “dialectical thinking” to exercise comprehensive discretion across six dimensions: upholding principles versus innovation; form versus substance; the abstract versus the concrete; history versus reality; the subjective versus the objective; and strictness versus restraint.
Attorney Meng Fen, Deputy Director of the King&Capital Research Center for Defense Against Official Misconduct, shared insights on the underlying logic and defense strategies for convicting cases involving new forms of corruption and hidden corruption. Starting with the Third Plenary Session of the 20th CPC Central Committee’s directive to “enrich measures for preventing and combating new forms of corruption and hidden corruption” and the issuance of the *Guidelines on Investigating Evidence Related to New Forms of Corruption and Hidden Corruption*, Attorney Meng Fen analyzed the five categories of bribery covered in the 61st batch of guiding cases issued by the Supreme People’s Procuratorate—including inflated transaction amounts, lending for interest, real estate transactions, investment returns, expected returns on pre-IPO shares—highlighting common characteristics such as “the civilization of the act of accepting bribes, the marketization of interest transfers, the anticipation of financial benefits,” and “using legal forms to conceal illegal purposes.” Attorney Meng Fen pointed out that the value orientation of investigative authorities in determining criminal liability has expanded from combating “exchanges of power for money” to combating “unequal transactional opportunities arising from power,” revealing an underlying logic of “first characterizing the act as a corrupt phenomenon, then gathering evidence according to the framework for establishing criminal liability.”
In this regard, Attorney Meng Fen proposed three defense strategies: First, adhere to the evidence standards centered on trial proceedings; regardless of how a phenomenon is characterized, it must ultimately be evaluated against the elements of a crime. Second, thoroughly research relevant laws and judicial interpretations to grasp the strict conditions for their application. Third, adjust the defense strategy in accordance with the prosecutorial authorities’ approach to criminal classification. Attorney Meng Fen concluded by emphasizing that new and covert corruption cases are complex and challenging, which means that while the scope for defense has correspondingly expanded, the difficulty of mounting a defense is equally evident.
Attorney Zhang Pengpeng, Secretary-General of the King&Capital Research Center for Defense in Official Duty Crimes, delivered a presentation titled “Rules for Determining and Defense Strategies for Bribery Crimes Involving Equity Interests and Stocks.” Attorney Zhang Pengpeng first outlined a clear trajectory of regulatory evolution: starting with the 2003 “Memorandum,” which emphasized whether “share capital” had been “paid” and whether it had been “paid in full,” with the amount of bribery determined based on the actual price at the time of receipt or the difference between the purchase price and the share capital; to the 2007 “Opinions,” which stated that the determination of the amount of bribery should distinguish whether the shares were actually transferred, determining the amount based on either the value of the shares at the time of transfer or the actual profit realized; then to the 2016 “Interpretation,” which included property-related benefits within the scope of “property”; Finally, the 2026 “Interpretation (II)” confirmed that expected returns on stocks and equity interests should be treated as bribery, with the amount of the bribe determined based on “whether actual profits were realized at the time of the incident,” using either the “actual profit amount” or the “premium.” Subsequently, Attorney Zhang Pengpeng analyzed the key judicial principles regarding conviction and the determination of bribery amounts in such cases through two typical examples: the Sun Moumou bribery case and the Wang Mou bribery case.
Attorney Zhang Pengpeng proposed three dimensions for a successful defense strategy: First, deny the existence of a quid pro quo between power and money by arguing that no such relationship exists—based on actual capital contributions, the absence of a quid pro quo between profits and official duties, and the assumption of risk by the recipient; Second, distinguishing between completed and attempted offenses: if the value of the equity is considered the basis of the bribery agreement, the act should be deemed an attempted offense under specific circumstances; if the expected returns are considered the basis of the bribery agreement, the determination of whether the offense constitutes bribery and whether it is a completed or attempted offense depends on whether the equity or shares were sold to realize a profit; Third, deducting reasonable costs, including capital contributions such as share capital, as well as fees and taxes incurred before profits were realized.
This forum served as an in-depth exchange of ideas among criminal defense practitioners from various law firms on cutting-edge issues related to official misconduct in a broad sense. The presentations by several senior attorneys from the King&Capital Center for the Defense of Official Misconduct fully demonstrated the professional expertise and forward-looking perspective of King&Capital Law Firm and the King&Capital Center for the Defense of Official Misconduct, which have deeply rooted themselves in the field of official misconduct and continue to explore solutions to practical challenges. Moving forward, the King&Capital Center for Defense in Official Duty Crimes will continue to rely on its regular professional seminar mechanism to consistently review typical cases and refine defense methodologies. We are committed to fully safeguarding the legitimate rights and interests of our clients and, together with our industry peers, will continue to advance the defense practice in official duty crimes toward greater precision and professionalism.
