The case of Chen, who was convicted of abuse of power and bribery.

[Keywords] Criminal Law / Abuse of Power Crime / Bribery Crime / Self-Surrender / Leniency in Punishment / Mitigation of Punishment

【Key Points of the Ruling】 After receiving a telephone notification from the investigating authority, the defendant arrived at the designated location at the agreed-upon time and truthfully confessed to criminal facts that the investigating authority had not yet uncovered. Such conduct is considered self-surrender. Moreover, since all the illicit funds have been fully recovered, the defendant may, in accordance with the law, receive a lighter or reduced punishment.

[Basic Facts of the Case] The defendant, Chen, was placed in criminal detention by the Shenyang Municipal People's Procuratorate on June 13, 2017, and was approved for arrest by the Liaoning Provincial People's Procuratorate on June 29 of the same year.

The People's Procuratorate of Hunnan District, Shenyang City, charges that the defendant Chen, while serving as director of a certain demolition office, abused his official authority, causing substantial damage to national interests under particularly serious circumstances; and took advantage of his position to illegally accept property from others.

【Judgment】 1. The defendant Chen was convicted of abuse of power and sentenced to one year of imprisonment; he was also convicted of accepting bribes and sentenced to two years and six months of imprisonment, together with a fine of RMB 200,000. Considering the combined sentences, the court decided to impose a total sentence of two years and ten months of imprisonment, along with a fine of RMB 200,000 (which has already been paid).

2. The illegally obtained proceeds of RMB 850,000 from the defendant Chen shall be recovered according to law and turned over to the state treasury (already paid).

【Reasons for the Ruling】 The defendant, Chen, as a state functionary, abused his official authority, causing substantial damage to the interests of the state. The circumstances are particularly serious, and his conduct thus constitutes the crime of abuse of power. Furthermore, taking advantage of his position, he illegally accepted property from others and sought benefits for them in exchange, involving an enormous sum of money. His conduct also constitutes the crime of bribery and should be punished according to law. After receiving a telephone notification from the investigating authority, Chen arrived at the designated location at the agreed-upon time; therefore, he should be considered as having voluntarily turned himself in. As for his crime of abuse of power, it should be recognized as self-surrender. After surrendering, Chen truthfully confessed to the investigating authority about the criminal fact of accepting bribes amounting to 850,000 RMB—information that the authorities had not yet uncovered—and this confession is treated as self-surrender. Moreover, all the illicit funds have been fully recovered. Therefore, he may be given a lighter or reduced punishment in accordance with the law. Given the specific circumstances of this case, he may be given a reduced punishment as permitted by law.

[Relevant Statute] Article 385 of the Criminal Law of the People's Republic of China [Crime of Accepting Bribes]: A state functionary who, taking advantage of his/her position, solicits property from others or illegally accepts property from others in order to procure benefits for those others commits the crime of accepting bribes.

State functionaries who, in economic transactions, violate state regulations by accepting rebates or handling fees under various pretexts and appropriating them for personal use shall be treated as having accepted bribes.

Article 397 [Crime of Abuse of Power] If a staff member of a state organ abuses his or her power or neglects his or her duties, causing significant losses to public property, the interests of the state, and the people, he or she shall be sentenced to a fixed-term imprisonment of no more than three years or detention. In cases involving particularly serious circumstances, the offender shall be sentenced to a fixed-term imprisonment of more than three years but no more than seven years. Where this Law provides otherwise, the provisions therein shall prevail.

Article 67 [Self-Surrender] A person who voluntarily turns himself in to the authorities after committing a crime and truthfully confesses his or her criminal acts shall be considered to have surrendered himself or herself. For criminals who surrender themselves, the punishment may be mitigated or reduced. Among them, those whose crimes are relatively minor may be exempted from punishment.

A criminal suspect, defendant, or offender currently serving a sentence who truthfully confesses to other crimes that the judicial authorities have not yet discovered shall be treated as having turned themselves in.

Although the suspect does not meet the conditions for self-surrender as stipulated in the preceding two paragraphs, if he or she truthfully confesses his or her crimes, a lighter punishment may be imposed; and if, due to the suspect’s truthful confession of his or her crimes, particularly serious consequences are avoided, a reduced punishment may be given.

Article 3 of the Interpretation by the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Embezzlement and Bribery: Where the amount involved in embezzlement or bribery exceeds three million yuan, it shall be deemed as “an especially large amount” as stipulated in Paragraph 1 of Article 383 of the Criminal Law, and the offender shall be sentenced to a fixed-term imprisonment of no less than ten years, life imprisonment, or death penalty, together with a fine or confiscation of property, in accordance with the law.

If the amount of embezzlement exceeds 1.5 million yuan but is less than 3 million yuan, and one of the circumstances specified in Paragraph 2 of Article 1 of this Interpretation is present, it shall be deemed to constitute “other particularly serious circumstances” as stipulated in Paragraph 1 of Article 383 of the Criminal Law, and the offender shall be sentenced to a fixed-term imprisonment of 10 years or more, life imprisonment, or death penalty, together with a fine or confiscation of property, in accordance with the law.

If the amount of bribery received is more than 1.5 million yuan but less than 3 million yuan, and one of the circumstances specified in Paragraph 3 of Article 1 of this Interpretation is present, it shall be deemed as “other particularly serious circumstances” as stipulated in Paragraph 1 of Article 383 of the Criminal Law, and the offender shall be sentenced to a fixed-term imprisonment of 10 years or more, life imprisonment, or death penalty, together with a fine or confiscation of property, in accordance with the law.

Article 19: For those convicted of embezzlement or bribery and sentenced to a fixed-term imprisonment of less than three years or detention, a fine of between 100,000 yuan and 500,000 yuan shall also be imposed. For those sentenced to a fixed-term imprisonment of more than three years but less than ten years, a fine of between 200,000 yuan and twice the amount of the crime shall also be imposed, or their property may be confiscated. For those sentenced to a fixed-term imprisonment of ten years or more, or life imprisonment, a fine of between 500,000 yuan and twice the amount of the crime shall also be imposed, or their property may be confiscated.

For other corruption and bribery offenses for which the Criminal Law prescribes and imposes fines, the fine shall be imposed at an amount between ten times the criminal amount and twice that amount.

[Lawyer’s View] First, Chen’s abuse of power was not a personal decision but rather was carried out following instructions from his superior leaders and after collective deliberation by the team.

In the process of housing demolition compensation, Chen committed an illegal act while performing his official duties under the instruction and guidance of his superiors. As the executor of decisions made by his superiors, Chen should bear only secondary responsibility. Moreover, the decision on housing demolition compensation was made following collective deliberation and discussion; therefore, Chen should not be held fully responsible for the collective decision. The alleged abuse of power charged by the prosecution was preceded by Chen’s prior requests and reports, accompanied during the process by collective discussions within the team, and confirmed and reviewed afterward by relevant leaders. This constitutes a typical case of dereliction of duty carried out in the form of “collective deliberation,” and Chen should be held accountable only within the scope of his official authority.

Second, the “Revised Valuation Report on the Expropriation Project” adopted by the prosecution contains omissions and cannot directly and objectively reflect the actual losses caused to the state by Chen’s abuse of power.

The information and materials upon which the “Re-examination and Valuation Report on the Expropriation Project” is based are neither objective nor comprehensive. The report calculates the state’s loss by starting from the original real estate appraisal report and subtracting the actual area of the properties located on the land. However, according to Article 17 of the “Regulations on the Expropriation and Compensation of Houses on State-Owned Land,” promulgated by the State Council in January 2011, if the expropriation of a house results in relocation, temporary resettlement, or losses due to suspension of production and business operations for the expropriated party, the expropriated party shall be compensated accordingly. Yet, the report fails to adequately reflect or quantify the amounts of loss incurred by the expropriated party as a result of relocation, temporary resettlement, and cessation of production and business operations caused by the demolition work. Consequently, the report does not objectively reflect the actual loss suffered by Chen to the state, and the amount of state loss determined by the prosecution clearly exceeds the actual loss.

Third, we recommend that the court give full consideration to such factors as Chen’s relatively minor subjective malice, the special period and specific circumstances in which his abuse of power occurred, and the location advantages of the area being demolished at the time, as well as the average price of commercial housing in that area. Furthermore, the court should comprehensively take into account the “holdout” problem and its severe social impact that have arisen during expropriation and relocation processes in other regions. The starting point behind Chen’s actions was to fulfill the government’s plan, properly carry out the demolition work, and maintain social stability. Moreover, these actions took place against the broader backdrop of land-expropriation and relocation disputes that had triggered social tensions.

4. Chen has statutory mitigating and leniency factors, including voluntary surrender, voluntary admission of guilt, voluntary restitution of illicit gains, and voluntary payment of fines.

The highlight of this case is that the court adopted most of the defense counsel’s arguments and recognized all of Chen’s statutory and discretionary mitigating circumstances, fully demonstrating the principles of proportionality between crime and punishment as well as the balanced approach of punishment and education. Chen sincerely repented and accepted the verdict without reservation, thereby achieving a harmonious integration of social and legal effects in this case.