Procuratorate of top people court, top people " about handling bribery criminal case applicable law the opinion of a certain number of problems " (the following abbreviation " opinion " ) the 4th regulation, national staff member uses the advantage of officially to ask person seek interest to ask, hold a person in the palm in order to entrust to invest negotiable securities, futures please other perhaps the name that entrusts conduct financial transactions, although actual and contributive, but get " accrual " apparent prep above is contributive deserved of accrual, in order to take bribes punish.
However, following case appear in practice: After partial state staff member is using the advantage of officially to ask person seek interest to ask, contributive entrust hold a person in the palm to have economy please, get fixed income every year, yield prep above never surmounts bank of the corresponding period however loan interest rate is fourfold. According to our country contract law the 211st with top people court " a certain number of opinions that hear leasehold case about people court " the 6th regulation, of interest rate of loan of bank the corresponding period fourfold the accrual in should be belonged to lawful. Reason is maintained afore-mentioned actual and contributive the act that gets income belongs to apparent prep above contributive deserved Fan Yi occupies the bribery behavior random of accrual.
Be based on this, majority handles a case personnel thinks: Must hold to " opinion " trust conduct financial transactions bribery clear standard, bank loan interest rate is fourfold the accrual redound in accords with market rule and legal provision, cannot in order to take bribes punish. But the author thinks: The judiciary ought to be in comprehensive understanding " opinion " the qualitative judgement that bribery crime makes on the 4th foundation and amount computation, cannot remove national staff member directly actual and contributive get accrual to did not deserved more than apparently the bribery property of earnings action.
" opinion " entrusted conduct financial transactions bribery behavior means the 4th times to install judicatory to judge regulation in the light of two kinds: (1) national staff member is not actual and contributive, borrow entrust other to invest negotiable securities, futures other perhaps the name that entrusts conduct financial transactions coverts receive other property; (2) although hold a person in the palm to give national staff member actually available please at investing an activity, but place of national staff member is obtained " accrual " not agree with apparently with actual profit. However, below actual and contributive circumstance, staff member of not all state asks to hold a person in the palm to undertake true capital run please, not all also ask the metropolis that ask a person to use this contributive undertake negotiable securities futures invests. " opinion " did not make a provision the 4th times with respect to the case of behavior of actual and contributive nonexistent however conduct financial transactions. Consign of national staff member hundred thousands of, the hall after about a hundred 10 thousand capital and the ground of emperor is annual collection 15% invest redound to a huge sum of 20% , hold person collection in the palm please of contributive not real operation, of behavior both sides alleged entrust conduct financial transactions relation, contributive, receive capital to all point to a purpose -- conceal seek profiteering and the corruption that receive bribery to trade relation. Still think below this kind of condition " apparent " deserved more than earnings ability in order to take bribes punish, it is actually will hold a person in the palm to be engaged in capital running please with undertake undeserved confuse sth with sth else without behavior of executive conduct financial transactions at all, understood mechanical ground, one-sidedly " opinion " the applicable object of the 4th clear standard.
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