Criminal

Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of Law in Handling Criminal Cases Involving Embezzlement and Bribery

 

(Adopted at the 1680th Session of the Trial Committee of the Supreme People's Court on March 28, 2016 and the 50th Session of the 12th Procuratorial Committee of the Supreme People's Procuratorate on March 25, 2016 and effective as of April 18, 2016)

 

In order to punish the crimes involving embezzlement and bribery in accordance with law, certain issues concerning the application of law in handling criminal cases involving embezzlement and bribery are hereby interpreted as follows in accordance with relevant provisions of the Criminal Law:

 

Article 1      Where the amount of embezzlement or bribes taken is not less than RMB 30,000 and less than RMB 200,000, it shall be determined to be a "relatively large amount" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not more than three years or criminal detention and a fine shall be imposed concurrently in accordance with the law.

 

Where the amount of embezzlement is not less than RMB 10,000 and less than RMB 30,000 and the embezzlement involves any of the following circumstances, the embezzlement shall be determined to be under "other relatively serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and subject to the fixed-term imprisonment of not more than three years or criminal detention and a fine concurrently in accordance with the law:

 

(1) Embezzling the specific money and property for disaster relief, emergency rescue, flood prevention and control, the care of disabled servicemen and the families of revolutionary martyrs and servicemen, poverty alleviation, immigration, social relief, epidemic prevention and social donation, etc.;

 

(2) Having been subject to the Party disciplinary or administrative sanction due to embezzlement, acceptance of bribes or misappropriation of public funds;

 

(3) Having been subject to criminal punishment due to intentional crime;

 

(4) Using the embezzled money or property for illegal activities;

 

(5) Refusing to explain the use of the embezzled money or property or refusing to cooperate in the recovery thereof, making the recovery impossible; or

 

(6) Causing bad influence or other serious consequence.

 

Where the amount of accepted bribes is not less than RMB 10,000 and less than RMB 30,000 and the embezzlement involves any of the circumstances prescribed in Item (2) through Item (6) in the preceding paragraph or any of the following circumstances, the embezzlement shall be determined to be under "other relatively serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and subject to the fixed-term imprisonment of not more than three years or criminal detention and a fine concurrently in accordance with the law:

 

(1) Demanding bribes repeatedly;

 

(2) Seeking improper benefits for others, resulting in the loss of public property or the interests of the State and the people; or

 

(3) Seeking promotion in or adjustment to positions for others.

 

Article 2      Where the amount of embezzlement or the accepted bribes is not less than RMB 200,000 and less than RMB 3 million, it shall be determined to be a "huge amount" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than three years and not more than ten years and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Where the amount of embezzlement is not less than RMB 100,000 and less than RMB 200,000 and the embezzlement involves any of the circumstances prescribed in Paragraph 2 of Article 1 hereof, it shall be determined to be under "other serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than three years and not more than ten years and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Where the amount of accepted bribes is not less than RMB 100,000 and less than RMB 200,000 and the bribery involves any of the circumstances prescribed in Paragraph 3 of Article 1 hereof, it shall be determined to be under "other serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than three years and not more than ten years and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Article 3      Where the amount of embezzlement or the accepted bribes is not less than RMB 3 million, it shall be determined to be a "especially huge amount" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than ten years, life imprisonment or death penalty and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Where the amount of embezzlement is not less than RMB 1.5 million and less than RMB 3 million and the embezzlement involves any of the circumstances prescribed in Paragraph 2 of Article 1 hereof, it shall be determined to be under "other especially serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than ten years, life imprisonment or death penalty and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Where the amount of accepted bribes is not less than RMB 1.5 million but less than RMB 3 million and the bribery involves any of the circumstances prescribed in Paragraph 3 of Article 1 hereof, it shall be determined to be under "other especially serious circumstances" prescribed in Paragraph 1 of Article 383 of the Criminal Law and the fixed-term imprisonment of not less than ten years, life imprisonment or death penalty and a fine or confiscation of property shall be imposed concurrently in accordance with the law.

 

Article 4      Where the amount of embezzlement or the accepted bribes is especially huge and the crime involves especially serious circumstances, causes especially bad social influence or results in especially heavy loss to the interests of the State and the people, death sentence may be imposed.

 

Where, under the circumstances prescribed in the preceding paragraph, the accused has voluntarily surrendered himself, rendered meritorious services, truthfully confessed his crime, showed true repentance, given up the embezzled money of his own accord, avoided the occurrence of or reduced the harmful consequences, or other relevant circumstances and immediate execution is not required, the accused may be sentenced to death penalty with two-year probation.

 

Under the circumstances prescribed in Paragraph 1, the people's court may sentence the accused to death with two-year probation according to the circumstances of crime and other circumstances, and decide at the same time that the accused will be subject to life imprisonment without commutation or parole after his sentence is commuted to life imprisonment upon the expiration of the two-year probation.

 

Article 5      Whoever misappropriates public funds for personal use in conducting illegal activities with the amount not less than RMB 30,000 shall be convicted of the crime of misappropriation of public funds and subject to criminal liability in accordance with Article 384 of the Criminal Law; if the amount is not less than RMB 3 million, it shall be determined to a "huge amount" specified in Paragraph 1 of Article 384 of the Criminal Law. Any of the following circumstances shall be determined as a "serious circumstance" specified in Paragraph 1 of Article 384 of the Criminal Law:

 

(1) Misappropriating public funds with the amount not less than RMB 1 million;

 

(2) Misappropriating specific money and property for disaster relief, emergency rescue, flood prevention and control, the care of disabled servicemen and the families of revolutionary martyrs and servicemen, poverty alleviation, immigration and social relief with the amount not less than RMB 500,000 and less than RMB 1 million;

 

(3) Misappropriating public funds without returning such funds with the amount not less than RMB 500,000 and less than RMB 1 million;

 

(4) Other serious circumstances.

 

Article 6      In the case of misappropriation of public funds for personal use in conducting activities to reap profits or with the misappropriated funds not returned within three months, it shall be determined as involving a “relatively large amount” specified in Paragraph 1 of Article 384 of the Criminal Law if the misappropriated amount is not less than RMB 50,000 or a “huge amount” specified in Paragraph 1 of Article 384 of the Criminal Law if the misappropriated amount is not less than RMB 5 million. If the misappropriation falls under any of the following circumstances, it shall be determined as involving “serious circumstances” specified in Paragraph 1 of Article 384 of the Criminal Law:

 

(1) Misappropriating public funds with the amount not less than RMB 2 million;

 

(2) Misappropriating specific money and property for disaster relief, emergency rescue, flood prevention and control, the care of disabled servicemen and the families of revolutionary martyrs and servicemen, poverty alleviation, immigration and social relief with the amount not less than RMB 1 million and less than RMB 2 million;

 

(3) Misappropriating public funds without returning such funds with the amount not less than RMB 1 million and less than RMB 2 million;

 

(4) Other serious circumstances.

 

Article 7      Whoever offers bribes in the amount of not less than RMB 30,000 to a State functionary to seek improper benefits shall be convicted of the crime of offering bribes and subject to criminal liability in accordance with Article 390 of the Criminal Law.

 

Whoever offers the bribe in an amount of not less than RMB 10,000 and less than RMB 30,000, which falls under any of the following circumstances, shall be convicted of the crime of offering bribes and subject to criminal liability in accordance with Article 390 of the Criminal Law:

 

(1) Offering bribes to at least three persons;

 

(2) Using illegal gains for offering bribes;

 

(3) Seeking promotion in or adjustment to positions through offering bribes;

 

(4) Offering bribes to the State functionaries who have the duty of supervision and administration in food, drugs, work safety and environmental protection, etc., for purposes of committing illegal activities;

 

(5) Offering bribes to judicial personnel, affecting the judicial justice; and

 

(6) Causing economic loss in an amount of not less than RMB 500,000 and less than RMB 1 million.

 

Article 8      The crime of offering bribes, which falls under any of the following circumstances, shall be determined as involving “serious circumstances” prescribed in Paragraph 1 of Article 390 of the Criminal Law:

 

(1) Offering bribe in an amount of not less than RMB 1 million and less than RMB 5 million;

 

(2) Offering bribe in an amount of not less than RMB 500,000 and less than RMB 1 million, which falls under the circumstances prescribed in Item (1) through Item (5) of Paragraph 2 of Article 7 hereof; and

 

(3) Other serious circumstances.

 

Offering of bribes to a State functionary to seek improper benefits, which causes the economic loss of not less than RMB 1 million and less than RMB 5 million, shall be determined as “causing heavy loss to the interests of the State” prescribed in Paragraph 1 of Article 390 of the Criminal Law.

 

Article 9      The crime of offering bribes, which falls under any of the following circumstances, shall be determined as involving “especially serious circumstances” prescribed in Paragraph 1 of Article 390 of the Criminal Law:

 

(1) Offering bribe in an amount of not less than RMB 5 million;

 

(2) Offering bribe in an amount of not less than RMB 2.5 million and less than RMB 5 million, which falls under any of the circumstances prescribed in Item (1) through Item (5) of Paragraph 2 of Article 7 hereof; and

 

(3) Other especially serious circumstances.

 

Offering of bribes to a State functionary to seek improper benefits, which causes the economic loss of not less than RMB 5 million, shall be determined as “causing especially heavy loss to the interests of the State” prescribed in Paragraph 1 of Article 390 of the Criminal Law.

 

Article 10      The standards applicable to the conviction and punishment of the crime of using influence to accept bribes prescribed in Article 388a of the Criminal Law shall be subject to the provisions on the crime of accepting bribes hereof as reference.

 

The standards applicable to the conviction and punishment of the crime of offering bribes to the persons with influence prescribed in Article 390a of the Criminal Law shall be subject to the provisions on the crime of offering bribes hereof as reference.

 

An entity that offers bribes in an amount not less than RMB 200,000 to a person with influence shall be convicted of the crime of offering bribes to persons with influence and subject to criminal liability in accordance with Article 390a of the Criminal Law.

 

Article 11      The starting point of the amount that constitutes a “relatively large amount” or a “huge amount” in the crime of accepting bribes by a non-State functionary prescribed in Article 163 of the Criminal Law or the crime of job-related embezzlement prescribed in Article 271 of the Criminal Law shall be twice or five times the amount corresponding to the crime of accepting bribes or the crime of embezzlement under these Interpretations.

 

The starting point of the amount that constitutes a “relatively large amount”, “a huge amount” or the circumstance of "conducting illegal activities" in the crime of misappropriation of funds prescribed in Article 272 of the Criminal Law shall be twice the amount for constituting "a relatively large amount", "serious circumstances" or the circumstances of "conducting illegal activities" in the crime of embezzlement of public funds under these Interpretations.

 

The starting point of the amount that constitutes a “relatively large amount” or “a huge amount” in the crime of offering bribes to a non-State functionary prescribed in Paragraph 1 of Article 164 of the Criminal Law shall be twice the amount for the crime of offering bribes under Article 7 or Paragraph 1 of Article 8 hereof.

 

Article 12      For the purpose of the crime of bribery, the money and property shall include money, items and property interests. The property interests shall include the material interests that can be converted into monetary amount such as decoration of houses and exemption of debts, etc. and other interests requiring the payment of money such as membership services and travel, etc. The amount of money involved in the crime in the latter case shall be computed according to the amount actually paid or required to be paid.

 

Article 13      Any of the following circumstances shall be determined as "seeking benefits for others" and shall be convicted and punished in accordance with the provisions on the crime of accepting bribes under the Criminal Law if it constitutes a criminal offense:

 

(1) Actually seeking or promising to seek benefits for others

 

(2) Clearly knowing that others have specific entrusted matters; and

 

(3) Not being entrusted in performance of duties but accepting money or property from others afterwards for reason of such performance of duties.

 

A State functionary who demands or accepts the money or property with the value not less than RMB 30,000 from a subordinate thereto or a person subject to the administration thereby, which may affect the exercise of powers, shall be deemed as promising to seek benefits for others.

 

Article 14      The crime of offering bribes that may be subject to the three-year fixed-term imprisonment or a lighter sentence based on the facts and circumstances of the crime may be determined as involving "relatively minor circumstances of crime" prescribed in Paragraph 2 of Article 390 of the Criminal Law.

 

Where the crime has been subject or may be subject to the ten-year fixed-term imprisonment or a heavier sentence based on the facts and circumstances of the crime or the case has relatively great influence in the province, autonomous region, or municipality directly under the Central Government concerned or across the country, it may be determined as "a major case" prescribed in Paragraph 2 of Article 390 of the Criminal Law.

 

Any of the following circumstances may be determined as "playing critical role in detecting a major case" as prescribed in Paragraph 2 of Article 390 of the Criminal Law:

 

(1) Voluntarily confessing to the clues to a major case that the case-handling organ has not obtained yet;

 

(2) Voluntarily confessing to the criminal clues that are not the clues to a major case but play an important role in detecting a major case;

 

(3) Voluntarily confessing to the facts of offering bribes, which plays an important role in the collection of evidence for a major case; and

 

(4) Voluntarily confessing to the facts of offering bribes, which plays an important role in the pursuit and capturing of runaways and recovery of bribes in a major case.

 

Article 15      Where bribes are accepted on several occasions without being handled, the amount of the accepted bribes shall be computed on accumulative basis.

 

Where a State functionary accepts the money and property from the entrusting person on several occasions before and after securing benefits for the entrusting person by taking advantage of his or her position with the amount of the money and property accepted before being entrusted reaching RMB 10,000 or more, such amount shall be included in the amount of the accepted bribes.

 

Article 16      Where a State functionary illegally possesses public funds or property or accepts money or property from others with the intention of embezzlement or acceptance of bribes and thereafter uses such money or property for expenditures on the business of the entity where he or she works or for social donation, such use shall not affect the determination of the crime of embezzlement or the crime of accepting bribes but may be taken into consideration in punishment.

 

Where a person having specific relation with a State functionary demands or accepts the money or property from others and the State functionary fails to return or hand over such money or property after becoming aware thereof, the State functionary shall be determined as having the intention to accept bribes.

 

Article 17      A State functionary that accepts the money or property from others and seeks benefits for others by taking advantage of his or her position, which concurrently constitutes the crime of accepting bribes and the crime of dereliction of duty prescribed in Section 3 of Chapter 3 or Chapter 9 under the Specific Provisions of the Criminal Law, shall be subject to combined punishment for the crime of accepting bribes and the crime of dereliction of duty, unless otherwise provided for under the Criminal Law.

 

Article 18      All the money and property obtained illegally by the criminals of embezzlement and bribery shall be recovered or the criminals shall be ordered to return or make compensation for the same and the lawful property of the victims shall be returned in a timely manner. The illegal gains not recovered or not returned or compensated in full shall be recovered or the criminals shall be ordered to return or make compensation for the same on continuous basis.

 

Article 19      Where the fixed-term imprisonment of not more than three year or criminal detention is imposed on the crime of embezzlement or the crime of accepting bribes, the criminal shall be subject to a fine of not less than RMB 100,000 and not more than RMB 500,000 concurrently; where the fix-term imprisonment of not less than three years and not more than ten years is imposed, the criminal shall be subject to a fine of not less than RMB 200,000 and not more than twice the amount involved in the crime or the confiscation of property concurrently; if the fixed-term imprisonment of not less than ten years or life imprisonment is imposed, the criminal shall be subject to a fine of not less than RMB 500,000 and not more than twice the amount involved in the crime or the confiscation of property concurrently.

 

For any other crime of embezzlement or bribery that is subject to a fine imposed concurrently under the Criminal Law, the fine shall be in a amount not less than RMB 100,000 and not more than twice the amount involved in the crime.

 

Article 20      These Interpretations shall come into effect on April 18, 2016. Where there is any discrepancy between these Interpretations and the judicial interpretations promulgated previously by the Supreme People's Court and the Supreme People's Procuratorate, these Interpretations shall prevail.