"Source of this article: Procuratorate Daily"
● To deal with repeated bribery, we should balance the needs of cracking down on crime and punishing corruption with maintaining stability and safeguarding human rights in accordance with legal provisions, judicial policies and criminal law theory, so as to realize the organic unity of "three effects".
● If the accumulated amount is large, the time span is short, the subjective intention is deep, and the social harm is great, it should be treated as a "collective crime", and the statute of limitations should be calculated with the last act as the accumulated amount of bribery.
Our country’s law stipulates that the amount of bribes received shall be calculated cumulatively if the bribes have not been dealt with for many times. "Answers to Some Questions about Supplementary Provisions on Punishing Corruption and Bribery" stipulates that when accumulating the amount of corruption, it should be implemented in accordance with the provisions of the Criminal Law on the limitation of prosecution, and the amount of corruption within the limitation of prosecution should be accumulated, and the amount of corruption that has passed the limitation of prosecution should not be calculated, which provides an important reference for dealing with the amount and limitation of bribery.
However, in practice, the situation of taking bribes for many times is complicated. The author believes that to deal with bribery for many times, we should balance the needs of cracking down on crime, punishing corruption, maintaining stability and safeguarding human rights in accordance with legal provisions and judicial policies, and realize the organic unity of "three effects". The author divides multiple bribery into four situations, and analyzes the amount calculation and limitation of action in each situation.
Repeated bribery is a continuous offence.
This refers to the continuous implementation of several independent crimes based on the same or generalized criminal intent. This situation is relatively simple. The criminal law has clearly stipulated that "if a criminal act has a continuous or continuous state, it shall be counted from the date of the end of the criminal act", which can be understood as the criminal law regards a serial offender as "a criminal act". Therefore, regardless of whether the previous bribery has passed the statute of limitations, it is only necessary to determine the statutory punishment and the statute of limitations by the time of the last act and the accumulated amount.
Suppose A took bribes of 500,000 yuan in three times for the same profit-making matter, namely, 100,000 yuan in 2011, 100,000 yuan in 2013 and 300,000 yuan in 2019. The case was committed in 2021, and the statute of limitations was calculated based on the bribery in 2019 and the accumulated amount of 500,000 yuan.
Repeated bribery is not a continuous offence, and all of them are independently convicted.
This situation is pointed out that different profit-making matters, different bribery intentions, and separate crimes of multiple bribery. According to the theory of crime, every act is independent at this time, and the original intention of the statute of limitations system is to reasonably limit the unlimited launch of the state penalty power, maintain social stability and protect the human rights of the parties. Therefore, in this case, each behavior should be evaluated separately, and the bribery behavior that has passed the statute of limitations will not be prosecuted.
Assuming that A’s bribery behavior is the same as above, but the three behaviors are not the same or generalized bribery intention, the actions in 2011 and 2013 that have passed the statute of limitations should not be prosecuted. Of course, it is not without responsibility not to prosecute a crime, and relevant acts should be dealt with in violation of discipline, and can be evaluated as sentencing circumstances in the prosecuted crime.
Repeated bribery is not a continuous offence, and neither is an independent crime.
This is pointed out that different profit-making matters, different bribery intentions, and no crime alone. There is a theory of "collective crime" in the academic circles, which holds that this situation is a collection in the form of multiple acts constituting one crime, such as tax evasion, corruption and bribery.
The author believes that although there is no close connection between time and behavior, repeated bribery shows the perpetrator’s stubborn criminal intent and social harm. Treating a single bribery that should be punished by the party and government as a whole as a "collective crime" and upgrading it to criminal prosecution is a manifestation of the requirement of "strictness" in investigating corruption and the intensity of "punishment".
In this regard, it should be handled differently according to the amount, plot, subjective malignancy and social harm.
First, if the cumulative amount is large, the time span is short, the subjective intention is deep, and the social harm is great, it should be treated as a "collective crime", and the statute of limitations should be calculated with the last act as the cumulative amount of bribery. Acts that are not closely related to the overall behavior, have a long time span and have a small amount may not be treated as crimes.
Second, if the time span is large, the amount of bribes is small, and the subjective viciousness and social harm are not great, the circumstances can be obviously minor and the harm is not great.
Suppose A took bribes of 10,000 yuan in 2006, 20,000 yuan in 2013 and 20,000 yuan in 2019. Although the accumulated amount reached 50,000 yuan, the time span was too long, and the first two acts were obviously over-prosecuted. At this time, it is unnecessary to be strict mechanically, but we should make full use of the "four forms" to punish and educate, save lives and achieve the unity of "three effects".
Taking bribes for many times, and having both an independent crime and a non-criminal act.
In this case, the perpetrator took bribes for many times, and there were independent crimes and independent crimes, including serial crimes. This kind of situation is the most complicated, and the author adopts the way of dividing point, taking the earliest independent bribery behavior that does not exceed the limitation of action as the dividing point. First, starting from the act, the subsequent acts are treated as crimes regardless of whether they are independently convicted, and the statutory punishment and statute of limitations are determined by the cumulative amount of the last act and the bribery acts treated as crimes.
Second, if the bribery before the boundary act becomes a crime independently, if it is still in the prosecution period according to the provisions of the Criminal Law that "if a crime is committed within the prosecution period, the prosecution period for the former crime shall be counted from the date of committing the latter crime", or it is in a continuous state with the latter crime, it will be treated as a crime, and the statutory punishment and limitation of action will be determined by the cumulative amount of the last act and the bribery treated as a crime.
Third, although the behavior before the boundary point behavior is not a crime independently, it should be treated as a crime if it is the same as or generalized with the behavior treated as a crime, and the amount of bribes should be included in the cumulative amount. This treatment takes into account the balance between serial offenders and "collective offenders", and acts that are independent and not guilty can be prosecuted because they are assembled to constitute a crime, so acts that are intentional for the same or generalization, whether they are serial offenders or not, should be prosecuted.
Suppose A took bribes for many times, namely, 20,000 yuan in 2006, 50,000 yuan in 2007, 1 million yuan in 2011, 20,000 yuan in 2013 and 100,000 yuan in 2019. The bribery in 2006 and 2007 was the same or generalized intention, and the case was committed in 2021.
First, according to the above demarcation method, accepting bribes of 1 million yuan in 2011 was the earliest independent bribery crime that did not exceed the statute of limitations, so it was a borderline behavior. From this act, the subsequent bribery acts in 2013 and 2019 were all treated as crimes, and the amount was accumulated with the bribery in 2011.
Secondly, before this act, 50,000 yuan was bribed in 2007, and the statute of limitations was 5 years (until 2012). A took bribes again in 2011, that is, according to the stipulation that "if a crime is committed within the prosecution period, the prosecution period for the former crime shall be counted from the date of committing the latter crime", the statute of limitations for bribery in 2007 shall be calculated based on bribery in 2011, so the bribery in 2007 has not exceeded the statute of limitations.
Third, the bribe of 20,000 yuan in 2006 should be treated as a crime because of the same or generalized intention as in 2007, and the amount should be included in the cumulative amount.
The above identification method aims to legally and appropriately deal with repeated bribery according to the law, the judicial policy of punishing corruption and the jurisprudence. However, vivid and diverse judicial cases can never be clearly applied by exhaustive enumeration. For the above problems, it is necessary to clarify the principles of dealing with multiple bribery in different situations through legislation or judicial interpretation, and define the specific meanings of "multiple bribery" and "untreated".
(Author: Guizhou Provincial People’s Procuratorate)