Special Guests
Lu Gansheng, Deputy Director of the Sixth Examination and Investigation Office of Baise Municipal Commission for Discipline Inspection
Wang Runa, Director of Case Trial Office of Baise Municipal Commission for Discipline Inspection
Lin Miaofen Deputy Director of the Third Procuratorial Department of Baise People's Procuratorate
Liu Ning, President of the Second Criminal Division of Baise Intermediate People's Court
Editor's Note
In this case, in March 2019, Zhang Birong and his subordinate Liang and others jointly bought a large truck to engage in profit-making activities. In May 2019, Zhang Birong proposed to promote and appoint Liang to the organization. During the organizational investigation, Zhang did not truthfully reflect the problems of Liang to the organization. How does Zhang Birong characterize the above behavior? Zhou wanted to partner with Zhang Birong in the coal business. Zhang Birong neither contributed nor participated in the operation, but asked Hao to borrow 1.5 million yuan to Zhou, and then appropriated 404000 yuan of operating profit. How can the above facts be characterized? We specially invite staff from relevant units to analyze.
Basic case:
Zhang Birong, male, joined the Communist Party of China in September 1991. He used to be the deputy county (city) head of Jingxi County (city) of Guangxi Zhuang Autonomous Region, the party secretary and director of the county (city) public security bureau, the deputy county head of Debao County, Baise City, the party secretary and director of the county public security bureau.
Violating integrity discipline and engaging in profit-making activities in violation of regulations. In March 2019, Zhang Birong, his subordinate Liang (another case) and others jointly invested 300000 yuan to buy a second-hand large truck, and attached the vehicle to a transportation company for operation. Before the Spring Festival in 2020, Zhang Birong will receive a dividend of 50000 yuan.
Violating organizational discipline and promoting and appointing cadres in violation of regulations. In May 2019, Zhang Birong, then Deputy County Chief of Debao County and Secretary and Director of the Party Committee of the County Public Security Bureau, proposed to promote Liang to the organization. During the organizational investigation, Zhang Birong failed to truthfully reflect to the organization a number of disciplinary and illegal problems of Liang, resulting in the promotion of Liang with illness. Zhang Birong was directly responsible.
Crime of accepting bribes. From 2015 to 2020, Zhang Birong took advantage of his position to seek benefits for others in project contracting, fund allocation and other aspects, and illegally received more than 7 million yuan of property from others (2.7 million yuan for attempted).
Among them, in 2018, the boss, Mr. Hao, won the bid for a project of Debao County Public Security Bureau, which was settled in five years. During the construction period, Mr. Hao said to Zhang Birong that after the settlement of the project funds, he would give 10% of the bid winning price, i.e. 3.2 million yuan, to Zhang Birong, who agreed. At the beginning of 2020, Zhang Birong "borrowed" 500000 yuan from Hao on the ground of urgent need for money. By the time of the crime, Zhang Birong had still not received 2.7 million yuan.
In July 2017, the boss Zhou came to Zhang Birong and proposed to run the coal business in partnership. Zhang Birong did not want to make capital contributions or actually participate in the operation, so he asked Hao to lend Zhou 1.5 million yuan to run the coal business. Mr. Zhou signed a contract with Mr. Hao, regarding the loan of 1.5 million yuan as Mr. Hao's contribution to the coal business, and the profit obtained will be distributed according to the proportion of contribution. Hao agreed. At the same time, Zhang Birong asked Hao to open a bank card to be kept and used by him to collect the operating profits distributed by Zhou to Hao. From January 2018 to August 2019, Mr. Zhou successively deposited more than 533000 yuan of Mr. Hao's profits into the bank account, of which Mr. Zhang Birong withdrew 404000 yuan and kept it for himself, and the remaining 129000 yuan belonged to Mr. Hao.
Crime of corruption. From 2015 to 2016, when Zhang Birong was the Party Secretary and Director of Jingxi County (City) Public Security Bureau, he instructed others to draw more than 160000 yuan from public funds by making false invoices, and he himself received 150000 yuan for personal expenses.
Investigation process:
[Case filing, review and investigation] On September 15, 2020, the Baise Municipal Commission for Discipline Inspection reviewed and investigated Zhang Birong's suspected serious violations of discipline and laws, and took retention measures on September 17. On November 17 of the same year, with the approval of the Guangxi Zhuang Autonomous Region Supervision Committee, Zhang Birong was extended for three months.
[Party Discipline and Governmental Sanctions] On February 4, 2021, Zhang Birong was expelled from the Party after being studied at the meeting of the Standing Committee of Baise Municipal Commission for Discipline Inspection and reported to the Baise Municipal Party Committee for approval; The Baise Municipal Supervision Commission shall give him a sanction of dismissal from public office.
[Transfer for examination and prosecution] On February 4, 2021, the Baise Municipal Supervision Commission transferred the case of Zhang Birong suspected of bribery and corruption to the Baise People's Procuratorate for examination and prosecution.
[Initiating Public Prosecution] On March 8, 2021, the Baise People's Procuratorate filed a public prosecution against Zhang Birong to the Baise Intermediate People's Court on suspicion of bribery and corruption.
[First instance judgment] On June 9, 2021, the Baise Intermediate People's Court sentenced Zhang Birong to 10 years' imprisonment and a fine of 500000 yuan for accepting bribes; Whoever commits the crime of corruption shall be sentenced to fixed-term imprisonment of one year and six months, and shall be fined 100000 yuan; In the case of combined punishment for several crimes, it was decided to execute a fixed-term imprisonment of ten years and six months and a fine of 600000 yuan. Zhang Birong refused and appealed.
[Decision of Second Instance] On January 28, 2022, the Higher People's Court of Guangxi Zhuang Autonomous Region ruled to reject the appeal and uphold the original judgment.
[Supplementary prosecution] On March 9, 2022, the Baise Municipal Supervision Committee transferred Zhang Birong's suspected bribery crime to the Baise People's Procuratorate for review and prosecution. On March 30, 2022, Baise People's Procuratorate designated Pingguo People's Procuratorate to examine and prosecute the case. On September 26, 2022, the People's Procuratorate of Pingguo City initiated a public prosecution to the People's Court of Pingguo City.
[Second First Instance Judgement] On April 28, 2023, the People's Court of Pingguo City sentenced Zhang Birong to three years' imprisonment and a fine of 200000 yuan for the crime of accepting bribes; He shall be sentenced to 10 years and 6 months of fixed-term imprisonment, and shall also be fined 600000 yuan. He shall be punished for several crimes together. He shall be sentenced to 11 years and 6 months of fixed-term imprisonment, and shall also be fined 800000 yuan. Zhang Birong refused and appealed.
[Decision of the second instance] On July 19, 2023, the Guangxi Baise Intermediate People's Court ruled to reject the appeal and uphold the original judgment. The judgment has now come into force.
In March 2019, Zhang Birong, together with his subordinate Liang and others, bought a large truck to engage in profit-making activities. In May 2019, Zhang Birong proposed to the organization to promote and appoint Liang. During the organizational investigation, Zhang did not truthfully reflect the problems of Liang to the organization. How does Zhang characterize the above behavior?
Lu Gansheng: In this case, to accurately determine the above behavior of Zhang Birong, first of all, we should recognize whether Zhang Birong's behavior is one behavior or two behaviors, and whether there is an implicated relationship between the two behaviors. From the comprehensive evidence of all parties, Zhang Birong's above behaviors are two independent behaviors. The former behavior does not necessarily lead to the latter behavior, and there is no implicated relationship between the two behaviors. Therefore, the above two behaviors should be evaluated separately. After analysis and discussion, we believe that Zhang Birong's above behaviors constitute violations of integrity discipline and organizational discipline.
First, in March 2019, Zhang Birong and his subordinate Liang Mou and others jointly invested 300000 yuan to buy a second-hand truck and attached the vehicle to a transportation company for operation. Before the Spring Festival in 2020, Zhang Birong will receive a dividend of 50000 yuan. During the handling of the case, a suggestion was made that shortly thereafter Zhang Birong sought benefits for Mr. Liang in the promotion of his position, and the 50000 yuan was suspected of taking bribes. After investigation and evidence collection, we did not adopt this view. According to the evidence on the record, Zhang Birong actually contributed to buy a large truck and participated in the operation and management, and received dividends with Liang and others according to the proportion of their contributions. The 50000 yuan is the income from his actual contribution and participation in the operation and management activities, which is not directly related to Zhang Birong's behavior of proposing to promote and appoint Liang to the organization and concealing his disciplinary and illegal problems from the organization, so it does not constitute a crime of bribery. However, as a leading cadre of the Party, Zhang Birong, together with his subordinate Liang and others, bought a large truck to engage in profit-making activities, which is in violation of relevant regulations, and should be characterized as a violation of integrity discipline in accordance with Article 94 of the Regulations of the Communist Party of China on Disciplinary Punishment in 2018.
Second, Zhang Birong knew that Liang, as a party member cadre, had taken advantage of his position to participate in profit-making activities in violation of regulations for a long time. Instead of stopping or reporting to the organization, he partnered with Liang to buy a large truck to participate in profit-making activities, forming a community of interests to a certain extent. In May 2019, Zhang Birong appointed cronies to seek benefits for the promotion of Liang. Knowing that Liang had multiple violations of discipline and laws, he still proposed to promote Liang to the organization. During the organizational investigation, he also failed to truthfully reflect Liang's problems to the organization. The evidence on the record proves that Liang Shixing did not ask Zhang Birong to help him with his promotion, nor did he give Zhang Birong property, so Zhang Birong does not constitute a crime of accepting bribes. According to the provisions of Article 76 of the Regulations of the Communist Party of China on Disciplinary Punishment in 2018, in the selection and appointment of cadres, there are acts in violation of the regulations on the selection and appointment of cadres, such as cronyism, exclusion of dissidents, official vows, intercession and intervention, official running, sudden promotion or adjustment of cadres, and the circumstances are relatively minor for those who are directly responsible and those who are responsible for leadership, Give warning or serious warning; If the circumstances are relatively serious, they shall be given the punishment of removing their posts within the Party or staying in the Party for investigation; If the circumstances are serious, they shall be expelled from the Party. To sum up, Zhang Birong's above behavior should be characterized as a violation of organizational discipline.
Zhou wanted to partner with Zhang Birong in the coal business. Zhang Birong neither contributed nor participated in the operation, but asked Hao to borrow 1.5 million yuan to Zhou, and then appropriated 404000 yuan of operating profit. How can the above facts be characterized? Is the briber Hao or Zhou?
Wang Runa: After investigation, in July 2017, the boss Zhou found Zhang Birong and proposed to run the coal business in partnership. Zhang Birong did not want to make capital contributions or actually participate in the operation, so he asked Hao to lend Zhou 1.5 million yuan to run the coal business. Mr. Zhou signed a contract with Mr. Hao, regarding the loan of 1.5 million yuan as Mr. Hao's contribution to the coal business, and the profit obtained will be distributed according to the proportion of contribution. Hao agreed. Later, Zhang Birong took up 404000 yuan of the profits allocated by Zhou to Hao. It can be seen that the 404000 yuan is not the profit of Zhang Birong's partnership with Zhou Moumou in the coal business, but the profit that Hao Moumou should have shared in the partnership between Zhou Moumou and Hao Moumou.
The essence of this fact is the power and money transaction between Zhang Birong and Hao. First, Zhang Birong subjectively knew that Hao had contributed 1.5 million yuan because he wanted his care, and had the purpose of illegally occupying 404000 yuan of profits. Zhang Birong confessed that he was unwilling to invest in the coal business, but Hao dared not refuse as long as he asked Hao to lend money to Zhou (actually to invest in the coal business) for the construction project of Debao County Public Security Bureau. Second, Zhang Birong did seek benefits for Hao in contracting engineering projects and allocating project funds. Objectively, Zhang Birong asked Hao to contribute 1.5 million yuan and actually accounted for 404000 yuan of the profit obtained from Hao's investment and operation with 1.5 million yuan. Zhang Birong "borrows eggs from chickens" through his power, which is essentially a power money transaction, and his behavior should be deemed as a crime of bribery.
The briber in this fact is Hao. In essence, Zhou only provided a platform for "doing business", but it was Hao who actually paid bribes. First, Hao agreed to invest 1.5 million yuan to run the coal business with Zhou in order to get Zhang Birong's attention. Hao's testimony confirmed that it was because Zhang Birong contracted the project of Debao County Public Security Bureau, so when Zhang Birong asked him to lend money to Zhou (actually to invest in coal business), he agreed to obtain Zhang Birong's future care. Second, Zhang Birong actually controls the operating profit that Zhou gave Hao. The testimonies and relevant documentary evidence of Mr. Zhou and Mr. Hao both confirmed that after Mr. Hao signed a contract with Mr. Zhou, Mr. Zhang requested Mr. Hao to open a bank card for Mr. Zhang to keep and use, which was used to collect the operating profits distributed by Mr. Zhou to Mr. Hao. In essence, Hao delivered benefits by investing in the coal business and handing over the operating profits to Zhang Birong. He had the subjective intention and objective behavior of offering bribes to Zhang Birong, which constituted the crime of offering bribes.
Hao proposed to give Zhang Birong 3.2 million yuan after the settlement of the project funds, and Zhang later "borrowed" 500000 yuan from Hao on the grounds of urgent need for money. How to determine the amount of bribes Zhang Birong accepted in this fact?
Lin Miaofen: In this fact, the amount of bribes Zhang Birong accepted was 3.2 million yuan, including 500000 yuan for the completed one and 2.7 million yuan for the attempted one.
In practice, the distinction between accomplished bribery and attempted bribery is generally based on whether the perpetrator actually possessed and controlled the bribery property at the time of the crime. The actual possession or control of the bribery property is the accomplished bribery, and the opposite is the attempted bribery. In this fact, both Zhang Birong's confession and Hao's testimony confirmed that in 2018, Zhang Birong used his position as Deputy County Chief of Debao County, Secretary of the Party Committee and Director of the County Public Security Bureau to help Hao in undertaking projects related to Debao County Public Security Bureau. In order to continue to get Zhang Birong's help and care, Hao agreed to give 10% of the project object, i.e. 3.2 million yuan, to Zhang Birong. Both parties reached an agreement to accept bribes, and both agreed to accept bribes of 3.2 million yuan. Hao said that he would send it to Zhang Birong after the project funds were settled. Later, Zhang Birong "borrowed" 500000 yuan from Mr. Hao on the grounds of urgent need for money, and Mr. Hao agreed. Zhang Birong's confession and Hao's testimony both confirmed that the amount was called "loan" and was actually the promised benefit fee. Zhang Birong proposed to borrow money from Mr. Hao when he didn't need it. He didn't sign any IOU with Mr. Hao, and the two parties didn't agree on the interest and paid it in cash. Until the case was committed, Zhang Birong had not returned the so-called "loan", and Hao had not urged Zhang Birong to repay it. The amount of 500000 yuan was actually possessed and used by Zhang Birong, which should be deemed as a successful bribery.
It can be seen that the briber and the briber agreed on the amount of bribery, and actually partially fulfilled it. The amount agreed by the two people is the total amount of bribery accepted by the briber, so the amount of bribery accepted by Zhang Birong in this fact is 3.2 million yuan, and the 500000 yuan paid in advance and actually owned by Zhang Birong constitutes a successful bribery. Later, due to the installment settlement of the project funds and the problem of Hao's fund turnover, the remaining 2.7 million yuan of the money promised by Hao did not actually be collected by Zhang Birong, which was due to unexpected reasons. Therefore, the 2.7 million yuan Zhang Birong failed to take bribes.
The Zhang Birong case was finally decided by the Higher People's Court of Guangxi Zhuang Autonomous Region in January 2022. Why was it prosecuted again in September 2022? Why did the court reject the appeal and uphold the original judgment in the second instance?
Lin Miaofen: In 2021, Zhang Birong's crime of bribery and corruption was tried by the Baise Intermediate People's Court in the first instance. On June 9, 2021, a judgment was made in accordance with the law. Zhang Birong refused to accept the judgment of the first instance and appealed. The Higher People's Court of Guangxi Zhuang Autonomous Region ruled on January 28, 2022 to reject the appeal and uphold the original judgment.
From the second half of 2021 to 2022, when investigating the case of Nong XX (now sentenced), the former deputy director of the Debao County Public Security Bureau, the Baise Municipal Supervision Commission found that Zhang Birong, while serving as the party secretary and director of the Debao County Public Security Bureau from September 2018 to July 2020, worked with Nong XX and Huang XX, the then political commissar of the Debao County Public Security Bureau (to deal with the case separately) by taking advantage of his position, In the process of administrative approval for the management of explosives, he provided assistance to Company A and collected a total of 741400 yuan of "reward" from Liao, the person in charge of the company, among which Zhang Birong was the principal criminal. According to the provisions of Article 70 of the Criminal Law of the People's Republic of China, if, after the judgment is pronounced but before the execution of the punishment is completed, it is discovered that the sentenced criminal has committed other crimes before the judgment is pronounced but has not been sentenced, a judgment shall be rendered for the newly discovered crime, and the punishment to be executed shall be determined according to the provisions of Article 69 of this Law based on the punishments imposed in the previous and subsequent judgments. The term already executed shall be counted as within the term decided in the new judgment.
Although the above criminal facts of Zhang Birong were later found to belong to the same crime as the bribery crime committed by Zhang Birong previously judged by the Baise Intermediate People's Court, the criminal procedure should still be started again according to the content of the Reply of the Supreme People's Court on Whether the Same Omission Crime of Sentenced Criminals Is Implemented for Multiple Crimes and Punishments After the Judgment is Declared, Zhang Birong shall be investigated for criminal responsibility for the above criminal facts according to law, and then be punished for several crimes. Therefore, the Court designated the case to be under the jurisdiction of the Pingguo People's Procuratorate, which will file a public prosecution to the Pingguo People's Court in September 2022 according to law to investigate Zhang Birong's criminal responsibility for the above criminal facts.
Liu Ning: In view of Zhang Birong's newly discovered criminal facts, the Pingguo People's Court made a criminal judgment on April 28, 2023 after the trial of the first instance. Zhang Birong refused to accept it and appealed to the Baise Intermediate People's Court. Zhang Birong and his defenders thought that the sentencing in the first instance was too heavy, and requested a lighter punishment.
Baise Intermediate People's Court formed a collegial panel to hear the case according to law. After reviewing the file materials, the collegial panel interrogated the appellant Zhang Birong and found that Zhang Birong's appeal opinion was not tenable. The reasons are as follows: Zhang Birong, who jointly accepted 741400 yuan of bribes with others, shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined or confiscated of property according to the relevant provisions of the Criminal Law; In the joint crime, Zhang Birong's behavior plays a major role, is the principal offender, and should be punished according to all the crimes he participated in; Zhang Birong actively returned his illegal gains and could be given a lighter punishment according to law. After comprehensive consideration, Pingguo People's Court, the court of first instance, decided to sentence him to three-year imprisonment within the statutory range of punishment. In this case, Zhang Birong has been sentenced for other criminal facts before and is serving his sentence. In accordance with the provisions of Articles 69 and 70 of the Criminal Law, Zhang Birong was punished for several crimes in accordance with the law. Zhang Birong was sentenced to ten years and six months for the previous case, and was also fined 600000 yuan. He was also sentenced to three years of fixed-term imprisonment for the subsequent case, and was also fined 200000 yuan. According to the provisions on combined punishment for several crimes, the combined term of imprisonment of the former and the latter two cases was 13 years and 6 months, and a fine of 800000 yuan was imposed. The People's Court of Pingguo City finally decided to sentence Zhang Birong 11 years and 6 months and impose a fine of 800000 yuan on him in combination with the facts, nature, circumstances, social harmfulness of all cases and Zhang Birong's confession and repentance. To sum up, the sentencing circumstances of Zhang Birong's active return of illegal income have been fully recognized in the first instance judgment, and he will be given a lighter punishment. In the second instance, the Baise Intermediate People's Court rejected the appeal and upheld the original judgment.