Interpretation of the case by the case : Analysis of borrowing and accepting bribes in the name of borrowing
2021-09-15: [Original Article Link].
Fact 1: At the beginning of 2013, when the education bureau of the city adjusted the cadres, Zhao and the director of the education bureau of the city recommended that Qian be adjusted from the post of director of the retired cadre department to the director of the financial department in accordance with the normal organizational procedures. 2016, Aug, Zhao due to its purchase to surnamed Qian proposed borrowing 100,000 yuan. Surnamed Qian not willing, but due to Zhao) are used to guarantee that its under the direct supervision of the accomplished will be 100,000 yuan handed over cash Zhao. The two parties have not signed a written loan agreement, nor have they agreed on the interest and repayment time of the loan. Zhao to 100,000 yuan for the child to buy property to the incident did not return. In August 2017, Qian called Zhao to pay back the money. Zhao said that there were many loans at home and he would talk about it in the future. It was further verified from 2016, to murder, Zhao and his or her spouse is still home loans 20 more than ten thousand yuan and more than 30 million other debt outstanding.
Facts 2: At the beginning of 2014, when C Construction and Installation Company participated in the bidding process of the teaching building project of the Education Bureau of the City, Zhao successfully successfully passed the bid for the company and provided information to the company's boss Sun, and help it in the settlement of project funds. In May 2014, Zhao asked Sun to provide him with a car on the grounds that his wife had no means of transportation, and indicated the model of the vehicle. Sun then buy a model value more than 80 million of car and after consultation with the Zhao, taking into account the views of resettled in their name, leaving it Zhao use. In April 2018, the director of the Education Bureau of A City was examined and investigated by the discipline inspection and supervision organs. Zhao was afraid of being implicated and returned the vehicle to Sun, saying that it would be returned after borrowing. From May 2014 to April 2018, the vehicle insurance fee was paid by Sun, and the vehicle refueling and maintenance were borne by Zhao. The other identified as 2014, May, Zhao and his or her spouse has deposit 200,000 yuan.
As for Fact 1, the first opinion is that Zhao borrowed money from Qian to buy a house for his son. As of the case, he did not return it, mainly because he did not have the ability to repay and did not say that he would not repay it, therefore, it does not constitute a request for bribery, but a loan. The second opinion is that when the Education Bureau of a city adjusted its cadres, Zhao made a profit for Qian and did not issue an IOU, from 2016, Aug to 2020, Jan nearly 4 years of time Zhao has been a lack of return to place the case on file for, Zhao constitute bribery.
Regarding fact 2, the first opinion is that Zhao asked Sun to provide him with a car, but did not settle the vehicle in his name, and Zhao returned the vehicle to Sun in April 2018, therefore, it is impossible to determine that Zhao asked Sun's vehicle, but borrowed. The second opinion is that because Zhao provided help for Sun in project contracting and payment settlement, Sun will buy a new car for Zhao, and according to Zhao's request to settle down in his own name, and Zhao returned the vehicle to Sun because he was afraid that the investigation and punishment of the relevant case would be implicated, not the real sense of return, therefore, Zhao constitutes a bribe.
The two facts in this case reflect the identification of normal borrowing and bribery crimes in the name of borrowing in the practice of discipline and law, and are the focus of controversy in practice. How to correctly grasp the boundary between bribery and borrowing is of great significance to distinguish between crime and non-crime.
First, on fact 1, the author agrees with the first opinion, Zhao's behavior does not constitute bribery
First, Zhao has a reasonable and legitimate reason to borrow, that is, to buy a house for his son. Second, the money borrowed by Zhao is indeed used for his son to buy a house, and the money goes in the same way as the reason for the loan. Third, Qian did not ask Zhao before and after the job adjustment. Zhao and the director of the Education Bureau of A City recommended Qian to serve in accordance with normal procedures. Fourth, the reason why Zhao did not return the loan, from its property status, is not able to repay the loan. Fifth, although Zhao and Qian did not sign a written loan agreement at the time of borrowing, nor did they agree on the loan interest and repayment time, but Qian had called Zhao to ask for the return of the loan. Regardless of whether Zhao wants to "request" or "borrow", the subjective meaning of Qian's loan is obvious, so the subjective aspect of the two parties has not reached the agreement on bribery and bribery.
The above points can basically be determined that Zhao's loan to Qian is a civil loan, rather than a bribe in the name of borrowing. In addition, although Zhao's behavior of borrowing does not constitute a crime, it violates the first paragraph of Article 90 of the Party Disciplinary Regulations. He borrows money from management service objects and affects the fair execution of official duties, and corresponding disciplinary sanctions should be given.
First of all, Zhao used his position to help Sun in project contracting and settlement of funds in 2014. Then he asked Sun to provide a car and pointed out the model of the vehicle, this is not in line with the custom of borrowing cars. Sun knows well that in order to thank Zhao for his help, he bought a new car directly and asked Zhao about the vehicle's request to settle down, it fully reflects the subjective psychological state of Zhao's "asking" and Sun's "sending. Secondly, the vehicle has not settled in Zhao's name, which is actually a means for Zhao to evade the discipline and law. According to the relevant judicial interpretation, if a state functionary takes advantage of his position to seek benefits for the trustee, accepts the trustee's house, automobile and other items without changing the ownership registration or borrowing the name of another person to handle the change of ownership registration, it does not affect the determination of bribery. Again, Zhao and his or her spouse get the sun of a new car, there is a deposit of 200,000 yuan, with purchase of ordinary ability of private cars, however, Zhao asked Sun to provide high-end vehicles with a price much higher than his family's purchasing power for long-term use, and he had the ability to repay part of the car at that time, but he never proposed to repay the car. Finally, Zhao returned the vehicle to Sun in 2018 because he was afraid that the investigation and punishment of relevant cases would involve him. It could not be regarded as a timely return and would not affect the determination of the crime of accepting bribes.
In fact 2, the vehicle has not been transferred to Zhao's name, vehicle insurance and other expenses are still paid by Sun, Zhao can be used indefinitely, once investigated, can be defended as "borrowing", this kind of behavior is more concealed and more difficult to investigate.
In summary, the author believes that in the trial of the case, it is necessary to make a comprehensive study and judgment based on the reasons for the loan, the whereabouts of the funds, whether there is any request for trustees, whether there is a repayment of the intention and behavior, and the reasons for the non-return, so through the appearance of "borrowing", the truth is restored in many ways.
Note: This is auto-translated version of an article meant for Chinese audience. A mature and nuanced reading is suggested.