Whether from the theoretical perspective of the generation mechanism of bribery crimes or from the empirical perspective of investigating and handling bribery crimes, whether it is the need for domestic anti-corruption or the need for Chinese enterprises to go global to prevent c

On the equal punishment of bribery and bribery

Author: Liu Renwen, researcher at the Institute of Law, Chinese Academy of Social Sciences, and vice president of the Chinese Criminal Law Research Association.

Source: "Chinese Criminal Law Journal" Issue 3, 2022. The full text is reproduced from the public account "China Criminal Law Magazine".

Abstract Really implementing "investigating both bribery and bribery" from a conceptual and institutional perspective is a fundamental solution to the ineffective governance of bribery crimes. Whether from the theoretical perspective of the generation mechanism of bribery crimes or from the empirical perspective of investigating and handling bribery crimes, whether it is the need for domestic anti-corruption or the need for Chinese enterprises to go global to prevent criminal risks, as well as the " United Nations Convention against Corruption " and extraterritorial legislation. Analysis can prove the proposition of "investigating both bribery and bribery". To this end, on the one hand, we must establish the concept of equal punishment for bribery and bribery at the law enforcement and judicial level, strengthen the level of case handling, implement the criminal policy of combining leniency with severity, and do a good job in the "second half of the article" on the conviction and punishment of bribery crimes; on the other hand, we must At the legislative level, we should promote the improvement of legislation on the crime of bribery and the crime of accepting bribes, properly handle the crimes of bribery and bribery, and proportion the punishments, cancel the introduction of the crime of bribery, and abolish the special surrender system for bribery crimes.

Keywords The crime of bribery should be investigated together with bribery. Correspondence of crime. Proportionality of punishment. Introduction to the crime of bribery

"Insisting on the investigation of bribery and bribery together" is a clear requirement put forward by the 19th National Congress of the Communist Party of China. An important aspect of this requirement is to intensify the crackdown on bribery crimes. In September 2021, the Central Commission for Discipline Inspection and the State Supervision Commission jointly issued the "Regulations on Further Promoting the Investigation of Acceptance and Offering of Bribery at the same time" jointly issued by the Central Organization Department, the United Front Work Department of the Central Committee, the Central Political and Legal Affairs Commission, the Supreme People's Court, and the Supreme People's Procuratorate. Opinions" (hereinafter referred to as the "Opinions") clearly stated: "We must be clearly aware that bribers use any means to 'hunt' party members and cadres, which is an important reason why the current increase in corruption still occurs, and we must deeply understand the political harm of bribery." In general, bribery There is a relationship of cause and effect, mutual utilization and mutual promotion with bribery. Only paying attention to the governance of bribery crimes but neglecting the governance of bribery crimes will lead to the governance of bribery crimes placing too much hope on the one-way governance of the bribe taker. However, blindly indulging bribers will cause some bribe recipients to be "hunted" for a long time, which will greatly reduce the effectiveness of controlling bribery crimes. For some time, an important reason why the bribery crime has been ineffective is that when investigating and dealing with bribery crimes, "taking bribes more seriously than giving bribes" is an important reason. To truly implement the "investigation of bribery and bribery at the same time", we must truly elevate the punishment of bribery crimes to an equally important position as the punishment of bribery crimes in terms of law enforcement, judiciary and legislation, and achieve equal emphasis on punishing both.

1. The necessity of punishing both bribery and bribery

(1) Whether it is domestic anti-corruption or Chinese enterprises going global, it is required to increase the crackdown on bribery crimes

Although in recent years, our country has repeatedly emphasized the need to increase the crackdown on bribery crimes. We have indeed achieved certain results in combating bribery crimes, but judging from relevant statistical data, the phenomenon of “taking bribes more seriously than giving bribes” has not been fundamentally reversed. The author used "bribery" as the keyword to search for legal documents from January 1, 2016 to December 31, 2021 on the "China Judgment Documents Network", and a total of 78,976 documents were retrieved; using "bribery" as the keyword When searching using keywords, only 22,879 legal documents were retrieved. The number of documents in bribery cases is only 29% of the number of documents in bribery cases.Although the crime of bribery and the crime of accepting bribes do not have a one-to-one correspondence (for example, a person who is extorted and does not receive any improper benefits is not a briber), in real life there does exist a situation where one briber corresponds to multiple bribe recipients (but at the same time, there is also a briber person corresponds to multiple bribers), but the huge difference between the two is still very revealing. According to empirical research by scholars, in judicial practice, the punishment for bribery crimes is relatively light, and the application rate of suspended sentences is relatively high. This "emphasis on accepting bribes and less on giving bribes" in the governance of bribery crimes has led to a misunderstanding in society: Bribery crimes are low-risk or even risk-free behaviors. This, in turn, has made bribery a common practice and a habit, and has even "hunted" officials with power and resources, making the latter a high-risk profession. This is not only not conducive to protecting cadres and effectively controlling bribery, but is also conducive to purifying the business environment and encouraging fair competition among enterprises. Especially in the context of Chinese enterprises going global, especially the implementation of the "One Belt, One Road" initiative, it should attract our attention.

With the rapid growth of my country's overseas investment and the further advancement of the "One Belt, One Road" initiative, more and more Chinese companies are going global, and Chinese companies are facing unprecedented risks of transnational commercial bribery. For this reason, President Xi Jinping proposed to build the "Belt and Road" into a "road of integrity" at the first and second "Belt and Road" International Cooperation Summit Forums in 2017 and 2019 respectively. This is not only the need to ensure fair competition in the international economic and trade order and maintain a clean and honest international political environment, but also the need to enhance national soft power and proactively seize the moral and legal high ground. From a practical perspective, in November 2018, U.S. Attorney General Sessions stated that he would focus on investigating the top ten targets involving my country, one of which was "investigating Chinese companies that compete with U.S. companies for allegedly violating the U.S. Anti-Overseas Policy." Corruption Act ". This shows that the United States uses the Foreign Corrupt Practices Act as a diplomatic and international trade policy tool to strengthen competition with my country, and has increased its investigation and prosecution of Chinese-related companies. In this regard, we must take precautions and maintain a zero-tolerance attitude towards bribery, so that we can benefit the country and be safe for ourselves.

(2) The close connection between the crime of bribery and the crime of accepting bribes determines that both crimes should be punished

The crime of bribery and the crime of accepting bribes are typical antagonistic offenders. In the occurrence mechanism of bribery crime, bribery behavior must be based on the existence of bribery behavior. Without bribery, there can be no bribery. In this sense, bribery and bribery are mutually reinforcing. Although my country's criminal law does not stipulate that all opposing offenders should be punished equally, and even unequal punishments are reasonable in some cases, the antagonistic relationship of bribery crimes requires that the criminal law should not only punish both behaviors at the same time, but also It is necessary to achieve equal regulation as much as possible, which is necessary to fully protect legal interests and effectively prevent and control bribery crimes.

In essence, the crime of bribery and the crime of accepting bribes are joint crimes. Even if the criminal law does not set up an independent crime of bribery, according to the relevant provisions of joint crimes, he can be punished as an accomplice of the crime of bribery. The accomplice relationship between the briber and the bribe-taker determines that the crime of bribery can be discovered based on the investigation and punishment of the briber, and the crime of bribery can also be discovered based on the investigation and punishment of the bribe-taker. Bribery crimes and bribe-taking crimes should be on equal footing in the investigation and handling process, and the punishment of one party cannot be ignored while dealing with the other. According to the principle of joint crime, as co-offenders who cause and effect each other and jointly infringe on the legal interests of integrity in official conduct, their roles are equal and they are both principal offenders. Therefore, one party must bear criminal responsibility for the behavior of the other party, and the person who commits some of the acts must be held accountable. All crimes involved in a joint crime bear criminal responsibility. Therefore, in the same case, there should not be much difference in the punishment of the two. Whether it is "heavy for accepting bribes and light for giving bribes" or "heavy for giving bribes and light for accepting bribes", it is inappropriate. Since the conviction and sentencing of the bribe taker and the bribe giver are based on the same case facts, the punishments for the two should be commensurate."It is more important to accept bribes than to offer bribes" and "It is more important to offer bribes than to accept bribes". In fact, they only hold criminal responsibility for some people and some behaviors in bribery crimes. To a certain extent, they ignore the role of the other party in the entire bribery crime process.

The crime of bribery is the internal corrosion of state power, and the crime of bribery is the external corrosion of state power. Both point to the same problem from different sides. Only by guarding against "hunting" by bribe-givers externally and guarding against the willingness of state functionaries to be "hunted" or even asking for bribes internally can power be protected from erosion. For a long time, in criminal law legislation, the special surrender system for bribery crimes has reserved a "back door" for bribers to escape punishment; in terms of criminal policy, bribery crimes have been used as a tool to control bribery crimes, resulting in a large number of applications of bribery crimes. Suspended sentence and immunity from criminal penalties. This is a manifestation of only paying attention to internal defense against corruption of state functionaries but neglecting external defense to "hunt" bribers. Although the "Criminal Law Amendment (9)" has made restrictive provisions on the leniency system for the crime of bribery, and increased the fine and penalty for the crime of bribery, the situation of "taking bribes more seriously than giving bribes" in legislation is still not there. Fundamentally changed. Although the highest judicial authority has repeatedly emphasized that "both bribery and bribery shall be punished equally," the judicial reality has not changed significantly. The fundamental reason is that bribery and bribery are treated as two separate issues, and the legislative setting does not highlight the difference between the two. The symmetrical relationship has led to the emergence of a special surrender system for bribery crimes, a practice of "drinking poison to quench thirst".

(3) Enlightenment from international conventions and extraterritorial legislation

Managing bribery crime is a global problem. In the process of fighting against bribery crime, the international community has accumulated some valuable experience, which is worth learning from. For example, Article 15 of the United Nations Convention against Corruption (hereinafter referred to as the "Convention") stipulates: "Each State Party shall take necessary legislative and other measures to criminalize the following intentional acts: (1) Direct or indirectly promising, proposing to give, or actually giving unfair advantages to the public official himself or other persons or entities, so that the public official will act or refrain from acting when performing official duties; (2) The public official himself or other persons A person or entity directly or indirectly solicits or accepts improper benefits as a condition for his or her actions or omissions in the performance of official duties. "The first item of this regulation stipulates the crime of bribery, and the second item stipulates the crime of accepting bribes. One provision stipulates two behaviors, thus highlighting the close correspondence between giving and receiving bribes. Except for Article 15, "bribery of foreign public officials or officials of international public organizations", "trading in influence" and "bribery in the private sector" stipulated in the Convention all adopt this method, which stipulates both bribery and bribery in the same article. Legislative models for the two crimes of bribery and acceptance. As a state party to the Convention, our country should be inspired by it.

The United States "Model Penal Code" is an important reference object for American states' legislation. Article 240.1 of the Model Penal Code stipulates the crime of bribery in public affairs as follows: “If a person gives, offers to give, or agrees to give to another person, or solicits, accepts, or agrees to accept from another person any of the following benefits, he shall be guilty of a felony of the third degree. The crime of bribery: (1) as the recipient of any financial benefit in consideration for a decision, opinion, suggestion, vote or other discretion made in the capacity of a civil servant, political party member or elector; or (2) as the recipient of a judicial or Any interest in consideration for the exercise of discretionary power in administrative proceedings, votes, recommendations or other official duties; or (3) any interest as consideration for the violation of statutory duties by public servants or political party personnel in an attempt to influence. A person shall not be entitled to a defense under this section if he is disqualified from acting in the manner desired because he is not yet in office or lacks authority or for any other reason."The American Law Institute's commentary on this point points out that this article stipulates the most serious crime of bribery. "In situations where the provision of money or other benefits is used to seek to influence the future operation of official functions, this crime bears the responsibility of punishing the briber and "The traditional function of a bribe taker". According to this provision of the "Model Penal Code", both bribery and bribery constitute third-degree felonies, and both crimes and penalties are the same.

The British "Anti-Bribery Law" is the most stringent in British history The bribery legislation, with its innovations in legislative concepts, mechanisms and systems, has reestablished the UK as a model of bribery criminal legislation. This law integrates bribery in the public and private sectors and provides for comprehensive crimes, namely. The crime of bribery in Article 1 and the crime of accepting bribes in Article 2 of this Law stipulate the penalties for all bribery crimes stipulated in this Law. According to this provision, violations of Articles 1 and 2 shall be treated as summary. If convicted according to the ordinary public prosecution procedure, he shall be sentenced to a jail sentence of not more than 12 months , or a fine not to exceed the statutory maximum amount, or both a jail sentence and a fine; if convicted according to the ordinary public prosecution procedure, he shall be sentenced to a jail sentence of not more than 10 years. Either an unlimited fine, or a combination of imprisonment and a fine. Although the British Bribery Act does not stipulate bribery and bribery as one provision, the law unifies bribery in the public sector and the private sector and covers all bribery. The legislative model of uniformly stipulating legal penalties for bribery crimes also reflects the clear attitude of legislators that bribery and bribery should be treated equally and punished equally.

(4) The reasons for opposition are difficult to establish.

Some scholars are opposed to punishing both bribery and bribery. , believes that the key to solving the problem of power corruption lies in overturning the legacy of traditional bureaucracy institutionally and strengthening supervision of public power. However, the proposition of equal punishment for giving and accepting bribes has a huge risk of diverting the country's governance of the core issue of corruption. In the opinion of commentators, it seems that bribery is worthy of sympathy. First of all, it must be clear that our country's criminal law clearly stipulates this. "Anyone who has not obtained any improper benefit by being extorted to give property to a state employee is not a bribe." In other words, if the party that the commentator sympathizes with is a vulnerable group, if it is not for the purpose of obtaining improper benefit, it is not a bribe. In this sense, it is established that the key to solving the bribery problem is to strengthen the supervision of public power from an institutional perspective. The problem is that in many fields, bribers do "hunt" to control resources. and powerful people, and the means and methods of "hunting" are difficult to prevent. In this case, if we still ignore the huge harm caused by "hunting" to the political ecology, business ecology, etc., we may even think that the punishment of "hunting" is inappropriate. The core of solving the problem is exactly what the commentators accuse of making the mistakes of superficial understanding and one-sided observation. For example, from 2011 to 2019, 31% of all companies involved in U.S. Foreign Corrupt Practices Act enforcement actions were doing business in my country; in 2016, 48% of overseas corruption cases investigated by the United States involved companies in China Companies bribe Chinese officials; in 2018, 6 of the 16 companies investigated by the United States were involved in bribery in China. In the GlaxoSmithKline bribery case, GlaxoSmithKline used large-scale bribery to squeeze out domestic pharmaceutical companies. Bribery payments in China accounted for about 30% of the cost of drugs. The mainland ex-factory price of Heputin and other drugs is 7.8 times that of South Korea. It is 5.4 times that of Canada and 4.7 times that of the United Kingdom. These multinational companies have repeatedly banned "foreign bribery" in our country, which has greatly damaged our country's business environment and public interests.According to the views of the aforementioned commentators, shouldn’t these American companies that paid bribes be dealt with seriously? Can it be simply blamed on our institutional mechanisms and the fact that we only deal with domestic bribe-takers and turn a blind eye to these transnational bribe-givers? It is worth noting that the direct reason why the United States enacted the Foreign Corrupt Practices Act in 1977 was that after the American Lockheed Corporation bribed the Japanese Prime Minister and the husband of the Queen of the Netherlands, the local people used this to attack the United States and their own government, believing that the United States The company's corrupt behavior has "polluted" local politics. In order to improve its external image and promote international business, the legislation was introduced to prohibit transnational commercial bribery. It can be seen that if bribery crimes are not punished proactively, senior officials will be "hunted" even in countries with high levels of corruption such as Japan and the Netherlands.

Some scholars have gone further and put forward the bold proposition of abolishing the crime of bribery. They believe that increasing the intensity of punishment is not as good as increasing the probability of punishment. In the case of implementing double penalty system for bribery and bribery, the briber and the bribe taker The establishment of an "offensive and defensive alliance" is the main reason for the low probability of being punished for bribery. Therefore, bribery should be decriminalized based on the "legislative effect theory". Only in this way will a "prisoner's dilemma" arise between the briber and the briber. ”, thereby helping to increase the probability of punishing bribery crimes and achieving the purpose of effectively controlling bribery crimes. The logical loopholes in this view are also obvious. Regardless of the fact that no such legislative basis can be found in the Convention and overseas legislation, even from the perspective of the scientific nature of our country's legislation, this kind of legislation should not be used because it is too utilitarian and undermines basic fairness and justice. adoption. Otherwise, it is obviously biased to abandon the pursuit of combined behaviors that clearly constitute crimes just to improve the investigation and prosecution rate of certain types of crimes and the detection and reporting rate. This idea is not consistent with our country's legislation that restricts the leniency system for meritorious service, and is also inconsistent with our country's criminal law's increased regulation of co-offenders.

2. Implement equal punishment for bribery and bribery from the law enforcement and judicial level

(1) Establish the concept of equal punishment for bribery and bribery

The 1997 Criminal Law specially set up a special surrender system for bribery crimes aimed at dividing and disintegrating the alliance between bribers. This system aims to waive all or part of the severe punishment for bribers in exchange for reporting and exposing clues about the bribe recipients' crimes. It is not difficult to see that our country’s criminal law adopts the strategy of “cracking down on bribery and serving the purpose of investigating and punishing bribery”. Specific to judicial practice, this thinking is reflected more thoroughly. For example, the "Notice of the Supreme People's Court and the Supreme People's Procuratorate on Strictly Investigating and Dealing with Serious Bribery Criminals While Handling Major Cases of Bribery-taking Crime" (Shanghai Procuratorate [1999] No. 1) states: "It is necessary to investigate and deal with major bribe-taking criminal cases. It shall be organically combined with the investigation and handling of serious cases of bribery and introduction of bribery, and by cracking down on bribery and introduction of bribery crimes, it will promote the investigation and handling of major bribery crimes and promote the comprehensive and in-depth investigation and handling of corruption and bribery cases.” Although this judicial standardization. The document also mentions cracking down on bribery crimes, but its purpose is very clear: cracking down on bribery crimes is to promote the investigation and handling of bribery crimes. Comrade Li Shaoping, former vice-president of the Supreme People's Court, once pointed out: "The notice of ' two high ' implies the policy of 'cracking down on bribery and serving the purpose of investigating and punishing bribery.'" Since the purpose of cracking down on bribery is to serve the purpose of investigating and punishing bribery, then, The punishment of the briber is not that important. As long as the briber takes the initiative to confess and provides clues about the briber's crime, his punishment can be reduced or exempted according to the provisions of the special surrender system. The practice of "paying more attention to bribery than paying bribes" in my country's criminal law legislation and judiciary puts bribers in a low-risk or even risk-free state, which has led to the formation of the wrong understanding in society that "bribery is not guilty" or "bribery is okay" . Therefore, in terms of implementing equal punishment for bribery and bribery, it is necessary to start from at least the following two aspects.

On the one hand, it is necessary to change the inherent thinking of our country's supervisory personnel and judicial personnel who regard the crackdown on bribery crimes as a means of investigating and punishing bribery crimes, correctly understand the close relationship between bribery and bribery as cause and effect and mutual inducement, and realize that indulgent bribery will ultimately Bribery will still breed, and the punishment of bribery crimes cannot be abandoned just because bribery crimes need to be investigated and punished. There are differences in the constituent elements of the crime of accepting bribes and the crime of offering bribes stipulated in my country's criminal law. For example, the crime of bribery stipulated in Article 385 of the Criminal Law only requires seeking benefits, while the crime of bribery stipulated in Article 389 requires seeking illegitimate benefits. Under the thinking of "taking bribes more seriously than giving bribes", investigators regard the crime of bribery as the focus of the investigation, pay attention to collecting evidence to prove the existence of profit-seeking matters, and neglect to collect evidence of the illegality of profit-seeking matters, which may result in compliance with The crime of bribery constituted and could not be convicted due to insufficient evidence. After changing to the law enforcement and judicial concept of "equal punishment for bribery and bribery", bribery crimes and bribery crimes should be investigated at the same time, and evidence on whether there are specific profit-seeking matters and whether the profit-seeking matters are legitimate should be collected together to determine whether they constitute a crime. For another example, the improper benefits obtained by the briber through bribery also have different meanings for the crime of accepting bribes and the crime of offering bribes. In the crime of bribery, if the improper benefits are property interests, they are illegal gains. According to the provisions of Article 64 of the "Criminal Law", they should be recovered or ordered to return compensation; if the improper benefits are non-property benefits, they should also be punished in accordance with the law. correct. However, there are no such requirements when dealing with bribery crimes. Under the thinking of "taking bribes more seriously than giving bribes", investigators collect case evidence for the purpose of investigating and punishing bribery crimes, and do not need to pay attention to issues such as the recovery and disposal of improper benefits obtained by bribers through bribery. According to this idea of ​​investigation and evidence collection, even if the crime of bribery and the crime of bribery are transferred to the judicial authorities, due to the deviation in the early investigation and evidence collection, the judicial authorities will not be able to effectively recover the stolen goods and restore the losses, which will affect the full realization of the deterrent effect of the penalty and even cause the briber to enter the criminal justice system. While serving a sentence in prison, his family members continue to enjoy the improper benefits obtained from bribery outside the home. The root cause of these problems lies in the failure to establish the concept of "equal punishment for bribery and bribery". Taking punishment of bribery as the ultimate goal of investigation and judicial procedures ignores the special features of bribery crimes in the investigation and handling process, resulting in law enforcement and judicial difficulties. Defects, deviations.

On the other hand, it is necessary to change the misunderstanding of our people about "bribery is not guilty" or "bribery is okay" and create a clean social culture. Human beings have a natural tendency to seek benefits and avoid harm. The reason why punishment has a deterrent effect is that people hope to avoid the pain caused by punishment. “For society, only when the sense of shame is strongly and appropriately formed will its crime rate be relatively low; for an individual, if he does not feel ashamed for committing an illegal act, he will go to crime. "For a long time, our country has formed a bribery subculture in which "gifts must be given when doing things". This subculture has become a fertile ground for bribery crimes to breed. Therefore, in order to effectively control the crime of bribery, in addition to reversing the situation of "taking bribes more seriously than giving bribes" through legislation and judiciary, we also need to eliminate the habit of "giving gifts" in society and reshape the public's sense of shame towards bribery. Only in this way Only by eradicating the root causes of bribery crimes can we fundamentally create a clean social culture.

(2) Strengthen the level of case handling

Bribery crimes are extremely secretive, and there are often mutually beneficial interests between the briber and the briber. Therefore, there are often "difficulties in discovery, investigation, and breakthroughs" in handling bribery cases. "Three difficult" problems. In order to solve these problems, our country's criminal law has legislatively set up a special surrender system for bribery crimes, and judicially also pursues the principle of "combating bribery and serving the purpose of investigating and punishing bribery." However, this criminal policy to deal with bribery crimes is unsuccessful. In the future, we need to find another way to solve the "three difficulties" of handling bribery cases.

First, it is necessary to achieve the connection between law and law and strengthen cooperation and constraints among case-handling agencies. The Supervision Law and the Criminal Procedure Law stipulate the cooperation and restriction mechanisms between case-handling agencies such as early intervention, transfer of clues, and how to handle cases where jurisdiction competes with . The supervisory organ When the supervisory organ requests the procuratorate to intervene in advance because of the crime of bribery, the procuratorate believes that the briber has committed a bribery crime, and should promptly submit the request; if it may constitute a bribery crime and requires further investigation and supplementary evidence, it should also provide evidence collection opinions on the bribery crime. . Supervisory organs should pay full attention to the relevant opinions of the procuratorial organs, provide evidence in a timely manner, and transfer criminal liability to judicial organs in a timely manner. When encountering a briber who also commits other crimes under the jurisdiction of the public security organs, we must strengthen the transfer of clues to the public security organs and simultaneous investigation. For example, among the five typical cases of bribery crimes jointly released by the National Supervisory Commission and the Supreme People's Procuratorate on April 20, 2022, in the case of Xue Moumou's bribery and collusion in bidding , the county Supervisory Committee reported that Xue Moumou was suspected of After the bribery crime case is filed for investigation, the county People's Procuratorate takes the initiative to seek opinions. The County Supervisory Committee fully communicated with the County People’s Procuratorate on the direction of investigation and evidence collection and evidence standards. In view of the fact that Xue Moumou also engaged in collusive bidding, the County Supervisory Committee, while investigating his suspected bribery crime, transferred clues about his colluding bidding to the public security organs for simultaneous investigation. Finally, the County People's Procuratorate filed a public prosecution for the crime of bribery and collusion in bidding, and the County People's Court accepted it.

The second is to improve evidence collection capabilities and use other evidence to achieve the conviction of " zero confession ". For a long time, in our country's judicial practice, due to the lack of other effective evidence collection methods, the handling of bribery crimes has largely relied on the confessions of both the briber and the briber. In response to this problem, since 2012, the Criminal Procedure Law and relevant judicial interpretations have successively stipulated new investigative measures and evidence forms such as technical investigation, investigative experiments, and electronic data, which have enhanced the case-handling capabilities and methods of the case-handling agencies, and reduced the burden on criminal cases. Reliance on the oral confessions of both parties. While increasing investigation measures, case investigators should emphasize the collection and review of peripheral evidence, use the corroborating relationships between peripheral evidence to build a proof system and consolidate the evidence chain, so as to achieve the standard of proof that the evidence is reliable and sufficient. In recent years, when investigating bribery crimes, cases of convictions based on "zero confessions" have continued to appear. This shows that case-handling agencies and investigators are paying more and more attention to the collection and fixation of peripheral evidence such as physical evidence, documentary evidence, witness testimony, etc. in bribery crimes to form a chain of evidence beyond oral confessions. For example, among the five typical cases of bribery crimes mentioned above, the Jiangxi Wang Moumou bribery case was a case where the briber gave "zero confession". The case handling agency focused on investigation, the use of documentary evidence and witness testimony, and a strict evidence system. , corporate accounts, bank statements, stocks, effective judgments and other documentary evidence are enough to form a complete chain of evidence, confirming the fact that Wang Moumou paid a bribe of 5 million yuan to Zhong Moumou in order to seek improper benefits. Finally, a public prosecution was launched in accordance with the law and was accepted by the People's Court. .

(3) Implement the criminal policy of combining leniency with severity

As a basic criminal policy, the balance of leniency with severity is also of guiding significance in the handling of bribery crimes. Combining leniency with severity in criminal policy, in addition to being strict when it should be strict and being lenient when being lenient, it is more important to achieve a "symbiosis" between leniency and severity. It must be leniency within strictness, severity within leniency, and be leniency-strictly and leniently. During the strict trial. Therefore, although intensifying the crackdown on bribery crimes is an important aspect of investigating both bribery and bribery, this does not mean that as long as bribery is involved, there is only a strict side. Attention should also be paid to achieving a balance of leniency and severity in handling bribery crimes.

Strictly speaking, in addition to the major commercial bribery listed in the "Opinions", bribery in important national work, key projects, and major projects, bribery in important people's livelihood areas and important public areas must be severely punished. In view of the reality of the rapid growth of my country's overseas investment, it is also important to seriously investigate and deal with bribery and bribery behavior of Chinese enterprises overseas. In addition, we must innovate working mechanisms to reform some past practices that are not conducive to controlling the growth of bribery. For example, there are some people in society who specialize in defrauding money from the family members of relevant criminal suspects on the pretext of helping to "fish for people." After the case is solved, the common practice in the past was to treat the defrauded person as a victim and return the money defrauded. Today, both in theory and practice, there are many claims that the so-called "victim" in this situation is actually a joint briber. Even if he is indeed defrauded, the money he defrauded should be turned over to the state treasury as stolen money and stolen property. The author believes that it is reasonable to treat these so-called "victims" who were deceived as joint bribers, because strictly speaking, their behavior meets the elements of the crime of bribery. Even if they are eventually deceived, the money they defrauded should not be returned. himself. Only in this way can they recognize right from wrong and understand the nature of their behavior.

From a lenient perspective, we must pay attention to the use of guilty pleas, lenient punishments, and compliance and rectification of the companies involved. For example, among the five typical cases of bribery crimes mentioned above, the bribery case of a company in Zhejiang and Li Moumou's unit was based on the fact that after the company and Li Moumou were brought to justice, they voluntarily and truthfully confessed their crimes, admitted the alleged criminal facts, were willing to accept punishment, and actively performed their ecological duties. The procuratorial organ, after consultation with the supervisory authority, made a lenient sentencing recommendation for a company in Zhejiang and Li Moumou, which was accepted by the court. For another example, on June 3, 2021, the Supreme People's Procuratorate released four typical cases of corporate compliance reform pilots. In the case of bribery of non-state personnel by Wang XX, Lin XX, and Liu XX of Company Y, the procuratorial organ considered that "Y Company is a key enterprise to be listed in Nanshan District, Shenzhen City, and it is a domestic leader in the field of professional audio. , "We are already carrying out pre-listing counseling", so Wang Moumou and others were made a decision not to prosecute in accordance with the law. At the same time, the procuratorate signed a compliance supervision agreement with Company Y, and promoted the company's compliance construction by proposing rectification suggestions to the company. , and conduct follow-up work such as compliance inspections to achieve good legal and social effects.

The criminal policy of combining leniency with severity is not only reflected in freedom punishment, but also should be reflected in property punishment and recovery of stolen goods. On the one hand, illegitimate property interests obtained from bribery should be recovered or ordered to be refunded in strict accordance with the law, and efforts should be made to recover illegal gains and recover national losses to the greatest extent; for illegitimate non-property interests obtained from bribery, such as business qualifications, academic degrees, etc. , job titles, etc., relevant units should be urged to revoke and correct them. On the other hand, while handling the case, we must protect the legitimate property of the persons and enterprises involved in the case in accordance with the law. It is strictly forbidden to seal, detain, freeze and other measures beyond the scope of the case. We must carefully choose the measures to recover the stolen goods such as confiscation, seizure, seizure, freezing and so on. We will protect the legitimate property of the persons and enterprises involved in the case in a normal manner. The impact on daily life and legal business is minimized.

(4) The "second half of the article" on the conviction and punishment of bribery crimes

"In the field of criminal policy, criminal law practice is not unique, but is surrounded by other social control practices." Governance of bribery crimes , we cannot rely solely on criminal law methods, we should also pay attention to the use of non-criminal methods. This is also a summary of our country’s experience and lessons in dealing with bribery crimes over the years.

First of all, we must pay attention to the role of supervisory recommendations and judicial recommendations .For example, in the aforementioned bribery case of a company in Zhejiang and a certain unit of Li, in response to the problems of poor performance of duties and corruption in this case, the county supervisory committee sent a supervision proposal requesting the environmental protection department to investigate integrity risk points, investigate system loopholes, and strengthen the system. Internal supervision, simultaneously carry out warning and education activities on party style and clean government, use cases to promote integrity, and implement the "second half of the article". For another example, in response to the problems exposed in the aforementioned bribery and collusive bid case involving Xue Moumou, the supervision and management of tendering and bidding involved many departments, unclear responsibilities, and "in charge of all and ignored". In terms of standardizing bidding agencies and increasing punishment for violations by employees, procuratorial recommendations were issued to the County Finance Bureau, Market Supervision Bureau, and Education and Sports Bureau. These units all adopted the procuratorial recommendations, purifying the environment in the field of bidding. Although supervisory suggestions and judicial suggestions are not criminal means, if used well, they can play a complementary role in preventing crime and criminal law. Because its focus is not only on retribution and prevention of criminals themselves, but on filling system loopholes, promoting the formation of a culture of clean government, and purifying the environment that may breed crime. For many years, our country's use of criminal punishment methods has focused more on the punishment and transformation of the criminals themselves, but not enough attention has been paid to the transformation and optimization of environmental factors related to the criminals. Supervision suggestions and judicial suggestions go beyond criminal means and focus on the environment other than the offender. From the perspective of social governance, it undoubtedly has positive significance.

Secondly, we must continue to explore the establishment of a bribery list system. Before the reform of the supervisory system, the Supreme People's Procuratorate had successively formulated the "Interim Provisions on Accepting Inquiries on Bribery Crime Files" and "Regulations on the Inquiry of Bribery Crime Files" to explore the establishment of a bribery crime file system and provide external bribery record inquiry services. In May 2015, the Supreme People's Procuratorate, together with the Ministry of Housing and Urban-Rural Development, the Ministry of Transport, and the Ministry of Water Resources, jointly issued the "Notice on Carrying out Bribery Crime File Inquiry in the Field of Engineering Construction". In order to prevent bribery crimes in the field of engineering construction, prevent To combat commercial bribery, relevant units and personnel are required to provide bribery file query results during the processes of project bidding, construction permit qualification application, and individual practice qualification determination. With the reform of the supervisory system and the revision of the Criminal Procedure Law, all the above normative documents have become invalid. The author believes that we should continue to explore the establishment of a bribery list system, and impose restrictions on units and personnel with bribery records in industry access, bidding, and obtaining preferential policies. At the same time, we should strengthen the daily supervision of bribery units and personnel, so as to Help enterprises standardize business practices and accurately prevent bribery crimes.

Finally, if the harm caused by crimes related to bribery crimes involves public interests and is difficult to be remedied through criminal prosecution, it should be remedied through public interest litigation and prosecution. For example, in the aforementioned bribery case between a company in Zhejiang and Li Moumou, in response to the environmental pollution damage related to the bribery crime, the County People's Procuratorate gave full play to the joint efforts of criminal prosecution and public interest litigation prosecution to promptly follow up on the ecological damage caused by the company's environmental pollution. Public interest litigation work. Following the recommendations of the pre-litigation prosecution for administrative public interest litigation, the environmental protection department was urged to negotiate with the company and sign the "Framework Agreement for the Appraisal and Assessment of Ecological and Environmental Damage Compensation in Environmental Pollution Cases." The procuratorial organ actively urged the company to assume liability for damage compensation, prompting the company to prepay 2 million yuan in ecological restoration funds, and continued to follow up and supervise to promote ecological damage restoration. “In justice, sentencing should involve all stakeholders. Restorative justice is an attempt to allow all key stakeholders to participate in the sentencing process. Every stakeholder wants to see crime dealt with effectively. treatment, so everyone should have a say in it. The purpose of restorative justice is to restore the relationship between the offender, the victim, and the community so that all parties can be satisfied."In the above case, although environmental pollution was not directly caused by the crime of bribery, there is a close connection between this result and the crime of bribery. From the perspective of restorative justice, it is also an object that needs to be restored after the crime of bribery. . Therefore, while handling bribery cases, it is beneficial to achieve the purpose of ecological damage restoration through public interest litigation, both in terms of legal and social effects.