SPC, SPP Interpretation on Handling Criminal Cases of Corruption and Bribery

Title: The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Corruption and Bribery
Promulgating Entities:The Supreme People's Court, The Supreme People's Procuratorate
Reference number: 
Promulgation Date: 2016-3-28
Expiration date: 
Source of text: http://www.law-lib.com/fzdt/newshtml/fzjd/20160418104106.htm

The Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Corruption and Bribery

Supreme People's Court Supreme People's Procuratorate

(Passed by the 1680th session of the Adjudication Committee of the Supreme People's Court on March 28, 2016, and by the 50th session of the 12th Supreme People's Procuratorate Prosecutorial Committee on March 25, 2016, and is to take effect starting on April 18, 2016.)

So as to lawfully punish and correct criminal activities of corruption and bribery, the following interpretation on the several issues of the applicable law in criminal cases of corruption and bribery are made on the basis of the relevant provisions of the criminal law:

Article 1: Where the amount embezzled or taken as bribes is between 30,000 and 200,000 RMB, it shall be found to be 'a larger amount' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of up to three years imprisonment or short-term detention and a concurrent fine is given in accordance with law.

In any one of the following circumstances where the amount embezzled is between 10,000 and 30,000 RMB, it shall be found to be 'other more serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of up to three years imprisonment or short-term detention and a concurrent fine is given in accordance with law.

(1) Embezzled funds or goods specified for disaster relief, emergency aid, flood control, preferential support (for disable servicemen and their families), poverty relief, immigrants, relief, epidemic prevention, and social donations;

(2) have previously received Party discipline or administrative sanctions for corruption, accepting bribes or misappropriating public funds;

(3) have previously been criminally prosecuted for an intentional crime;

(4) Used illicit funds or goods for illegal activities;

(5) Refused to account for illicit funds or cooperate with efforts to recover it, so that they cannot be recovered;

(6) Caused a vile impact or other serious consequences.

Where the amount taken as bribes is between 10,000 and 30,000 RMB, has one of the situations provided for in items 2-6 of the preceding paragraph, or in any of the following circumstances, it shall be found to be 'other more serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of up to three years imprisonment or short-term detention and a concurrent fine is given in accordance with law:

(1) Solicited bribes multiple times;

(2) Caused harm to public assets or the state and people's interests, so as to gain an improper benefit for others;

(3) Sought a promotion or job adjustment for others;

Article 2: Where the amount embezzled or taken as bribes is between 200,000 and 3 million RMB, it shall be found to be 'a huge amount' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of between three and ten years imprisonment and a concurrent fine or confiscation of property is given in accordance with law.

In any one of the circumstances provided for in paragraph 2 of Article 1 of this Interpretion, where the amount embezzled is between 100,000 and 200,000 RMB, it shall be found to be 'other serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of between three and ten years imprisonment and a concurrent fine or confiscation of property is given in accordance with law.

In any one of the circumstances provided for in paragraph 3 of Article 1 of this Interpretion, where the amount taken as bribes is between 100,000 and 200,000 RMB, it shall be found to be 'other serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of between three and ten years imprisonment and a concurrent fine or confiscation of property is given in accordance with law.

Article 3: Where the amount embezzled or taken as bribes is 3 million or more RMB, it shall be found to be 'an especially huge amount' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of 10 or more years imprisonment, indefinite imprisonment or a death sentence, and a concurrent fine or confiscation of property is given in accordance with law.

In any one of the circumstances provided for in paragraph 2 of Article 1 of this Interpretion, where the amount embezzled is between 1.5 and 3 Million RMB, it shall be found to be 'other especially serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of ten years or more imprisonment, indefinite imprisonment or a death sentence, and a concurrent fine or confiscation of property is given in accordance with law.

In any one of the circumstances provided for in paragraph 3 of Article 1 of this Interpretion, where the amount taken as bribes is between 1.5 and 3 Million RMB, it shall be found to be 'other especially serious circumstances' as provided for in paragraph 1 of article 383 of the Criminal Law, and a sentence of ten years or more imprisonment, indefinite imprisonment or a death sentence, and a concurrent fine or confiscation of property is given in accordance with law.

Article 4: Where the amount embezzled or taken as bribes is especially huge, the circumstances of the crime especially serious, the social impact especially heinous, or the harm to the state and people's interests especially large, a death sentence may be given.

Where the situation meets the provisions of the preceding paragraph, but there are circumstances that avoided or reduced the occurrence of harmful consequences such as voluntary surrender, making a meritorious service, truthfully recounting one's crimes, sincerely repenting, or proactively surrendering ill-gotten gains, and immediate enforcement is not nescessary, a death penalty with two year suspension may be given.

Where the circumstances meet the provisions of the first paragraph, then a death sentence with a two-year suspension may be given based on the circumstances of the crime, and a ruling may be made concurrently that after the two-year period for the suspended death penalty is completed and it is commuted to indefinite imprisonment, there will be indefinite imprisonment without the the possibility of commutation or parole.

Article 5: Where public funds are missapropriated for personal use or to conduct illegal activities and the amount is more than 30,000; it shall be found to be "a huge amount" as provided for by the first paragraph of Criminal Law article 384. In any of the following circumstances, it shall be found to be 'serious circumstances' as provided for in Criminal Law article 384:

(1) Misappropriated 1 million RMB of public funds or more;

(2) Misappropriated between 500,000 and 1 million RMB of specially designated relief funds and materials for disaster relief, emergency rescue, flood control, special care, poverty relief, inhabitant resettlement, or [social] relief;

(3) Misappropriated between 500,000 and 1 million RMB of public funds and did not return it;

(4) Other serious circumstances.

Article 6: Where public funds are misappropriated for public use or to conduct for-profit activities, are not returned after more than 3 months, or the amount is 50,000 RMB or more, it shall be found to be a "larger amount" as provided for in Criminal Law article 384; where the amount is 5 million or more, it shall be found to be a "huge amount" as provided for in paragraph 1 of Criminal Law article 384. In any of the following circumstances, it shall be found to be 'serious circumstances' as provided for in Criminal Law article 384:

（1） Misappropriated 2 million RMB of public funds or more；

(2) Misappropriated between 1 and 2 million RMB of fund specified for disaster relief, emergency aid, flood control, preferential support (for disable servicemen and their families), poverty relief, immigrants, or relief;

（3） Misappropriated between 1 and 2 million RMB of public funds and did not return it；

(4) Other serious circumstances.

Article 7: Those who give bribes to state employees in an amount of 30,000 RMB or higher, so as to obtain improper benefits, shall be pursued for criminal liability for bribery in accordance with the provisions of article 390 of the Criminal Law.

in any of the following circumstances, where bribes amounting to between 10,000 and 30,000 RMB are given, it shall be pursued for criminal liability for bribery in accordance with the provisions of article 390 of the Criminal Law.

(1) bribes were offered to three or more people;

(2) unlawful gains were used to make the bribe；

(3) Bribes were given in order to obtain professional promotions or adjustments;

(4) For the purpose of carrying out unlawful activity, bribes were made to state workers with supervisory or administrative responsibility for areas such as food, drugs, production safety, or environmental protection, so as to commit illegal acts;

(5) Bribes were made to workers at a judicial organ, impacting judicial fairness;

(6) the economic harm caused was between 500,000 and 1 million.

Article 8: In any of the following circumstances where the crime of bribery is committed, it shall be found to be ' serious circumstance' as provided in the first clause of Criminal Law article 390:

(1) the amount of the bribes is between 1 and 5 million RMB；

(2) where the amount of the bribes is between 500,000 and 1 million and there are any of the situations provided for in items 1-5 of the second paragraph of article 7 of this Interpretation;

(3) Other serious circumstances.

Where bribes are offered to state employees so as to obtain improper benefits and causes an economic loss of more than 1 million RMB, such circumstance shall be found to “cause a major loss to national interests” as provided in the first paragraph of Criminal Law article 390.

Article 9: In any of the following circumstances where the crime of bribery is committed, it shall be found to be 'especially serious circumstance' as provided in the first clause of Criminal Law article 390:

(1) the amount of the bribe was more than 5 million RMB；

(2) where the amount of the bribes is between 200,000 and 500,000 RMB and there are any of the situations provided for in items 1-5 of the second paragraph of article 7 of this Interpretation;

(3) Other especially serious circumstances.

Where bribes are offered to state employees so as to obtain improper benefits and cause an economic loss of more than 5 million RMB, such circumstance shall be found to “cause a especially major loss to national interests” as provided in the first paragraph of Criminal Law article 390.

Article 10: With regard to the applicable standards of the conviction and punishment of the crime of taking advantage of influence to take bribes as provided for in Criminal Law Article 388-1, proceed with reference to the provisions concerning the crime of taking bribes of this Interpretation.

With regard to the applicable standards of the conviction and punishment of the crime of giving bribes to influential persons as provided for in Criminal Law Article 390-1, proceed with reference to the provisions concerning the crime of giving bribes of this Interpretation.

Where work units give bribes to influential persons in the amount of more than 200,000 RMB, pursue criminal responsibility as giving bribes to influential persons in accordance with the provisions of Criminal Law Article 390-1.

Article 11: With regard to the starting points for the "larger amount" and "huge amount" in the crime of non-state employee taking bribes as provided for in Criminal Law Article 163, and in the crime of professional occupation as provided for in Criminal Law Article 271, proceed as twice and five times of the corresponding amount standards for the crimes of bribe-taking and embezzlement as stipulated by this Interpretation.

With regard to the starting points for the "larger amount," "huge amount" and the circumstances of "conducting illegal activities" in the crime of misappropriating funds as provided for in Criminal Law Article 272, proceed as twice of the corresponding amount standards for "larger amount," "huge amount", and "conducting illegal activities" in the crime of misappropriating public funds as stipulated by this Interpretation.

With regard to the starting points for the "larger amount" and "huge amount" in the crime of non-state employee giving bribes as provided for in paragraph 1 of Criminal Law Article 164, proceed as twice of the corresponding amount standards for the crime of bribe-giving as provided for in Article 7 and paragraph 1 of Article 8 of this Interpretation.

Article 12: "Properties" in crimes of bribery include currency, articles, and property benefits. Property benefits include material interest that can be converted to currency such as housing decoration and debt relief, and other benefits requiring monetary payments such as membership service and vacations. Criminal amount of the latter is calculated using the amount that was actually paid or that was supposed to be paid.

Article 13: In any of the following circumstances, it shall be found to "seek benefits for others"; where a crime is committed, convict and punish in accordance with the provisions of the Criminal Law concerning the crime of bribe-giving:

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

(2) Clearly knowing that others have entrusting matters;

(3) Not entrusted while performing duties, but accepting others' properties after the event on the basis of the duties performed.

Where state employees solicit or accept property valued at 30,000 RMB or more from a subordinate under them or a person whom they manage in an administrative management relationship, and it might influence the performance of their duties, it is viewed as a promise to seek benefits for others.

Article 14: Those that might be sentenced to up to three years imprisonment on the basis of the facts and circumstances of having given bribes, may be found to have a 'lighter crime' as provided for in paragraph 2 of Criminal Law article 390.

Those who have already or might be sentenced to 10 or more years imprisonment on the basis of the facts and circumstances the crime, or where the case has a larger influence in that province, autonomous region, or directly governed municipality or across the entire nation, it may be viewed as a 'major case' as provided for in paragraph 3 of Criminal Law article 390.

In any of the following circumstances, it may be considered 'playing a key role in solving a major case' as provided for in paragraph 2 of Criminal Law article 390:

(1) Actively giving over leads to major cases not yet obtained by case-handling organs;

(2) Actively giving over leads to crimes that are not major cases leads, but are play a major role in breaking a major case;

(3) Actively confesses the bribery, playing an important role in the gathering of evidence in a major case;

(4) Actively confesses the bribery, playing an important role in the pursuit of suspects or ill-gotten gains in a major case;

Article 15: Where bribes have been taken multiple times and not yet addressed, punish in accordance with the cumulative amount of the bribes.

Where state employees exploit their positions to facilitate seeking benefits for a person so entrusting them, and accept assets from that person repeatedly either before or after, and the amount of assets accepted before being entrusted is 10,000 RMB or more, it shall be calculated into the amount of accepted bribes.

Article 16: Where state employees illegally take possession of public assets or accept the assets of others with the intent to embezzle or accept a bribe , and then uses the ill-gotten funds or assets for official expenditures at their unit or as social donations, it does not impact the assessment of the crimes of embezzlement or taking bribes, although it may be taken into consideration at sentencing where appropriate.

Where persons with specified relationships solicit or accept others assets, and state employees don't return or hand over it after they become aware, they state employees shall be considered to have teh intent to accept bribes.

Article 17: Where state employees exploit their positions to accept properties from others and seek benefits for others, constituting simultaneously the crime of bribe-taking and crimes of dereliction of duty as provided for in Section 3 of Chapter 3 and Chapter 9 of the Specific Provisions of the Criminal Law, except otherwise stipulated by the Criminal Law, punish for both the crimes of bribe-taking and dereliction of duty.

Article 18: All unlawful gains of criminals from crimes of embezzlement and bribery shall be recovered in accordance with article 64 of the Criminal Law or restitution ordered, the lawful assets of victims shall be promptly returned. Unlawful gains that have not been recovered or restitution is incomplete, recovery shall continue or restitution ordered.

Article 19: Where crimes of embezzlement or accepting bribes are given sentences of up to three years imprisonment or short-term detention, a fine of between 100,000 and 500,000 shall be concurrently assessed; where the sentence is between 3 and 10 years imprisonment, a fine of up to double the amount involved in the crime is concurrently assessed or assets are confiscated; where the sentence is 10 or more years imprisonment or indefinite imprisonment, a fine of between 500,000 and double the amount of the crime is is concurrently assess, or assets are confiscated.

For other crimes of embezzlement and bribery that the Criminal Law provides will be given a fine, fines between 100,000 RMB and double the amount involved in the crime shall be given.

Article 20: This Interpretation shall enter into force on April 18, 2016. Where interpretations previously released by the Supreme People's Court and Supreme People's Procuratorate differ from this interpretation, this interpretation is controlling.