In response to the accusation of the procuratorate, Yu Bin pointed out that nearly 6.5438+0.5 million yuan of the property he received has been used for poverty alleviation, social sponsorship and official activities, and it is not necessary to determine the amount of bribes.
On February 23, 2004, the People's Court of Junshan District, Yueyang City made a first-instance judgment: the defendant Yu Bin was convicted of accepting bribes, sentenced to 3 years in prison, suspended for 5 years, and confiscated 60,000 yuan of property; It was found that the defendant Yu Bin took bribes of 95,000 yuan and the illegal income was 654.38+10,000 yuan, which was recovered and turned over to the state treasury.
However, for the first-instance judgment, the Junshan District Procuratorate of Yueyang City protested. Almost at the same time, the defendant Yu Bin also filed an appeal.
In the prosecution's protest, the prosecution believed that the first-instance judgment wrongly determined the amount of bribes received by Yu Bin, which led to improper sentencing.
At the same time, in the appeal, the defendant Yu Bin admitted that he accepted other people's property privately, but thought that it was only a violation of party discipline and discipline, and there was no illegal and criminal behavior. All the property he received was used for official activities, helping the poor, etc. And subjectively there is no intention to take possession of it, so it does not constitute a crime and should not be punished by criminal law.
On March 10, 2005, Yueyang Intermediate People's Court held a second trial to hear the case. The focus of the debate between the two sides is still whether the defendant Yu Bin constitutes a bribe and the specific amount of bribes.
Please read the above cases and explain your views on whether the destination of bribery affects the establishment of the crime of accepting bribes from the perspective of criminal law.
"Reference example"
The destination of accepting bribes does not affect the establishment of accepting bribes.
In judicial practice, defendants (criminal suspects) in bribery cases often argue that they have used the proceeds of bribery for "official expenses", such as treating guests, giving gifts, entertainment consumption and compensating for unreimbued official expenses, or for helping the poor and social sponsorship. Some procuratorial organs believe that criminal responsibility should be investigated, and judicial organs often object to the whereabouts of the stolen money, and finally find it innocent accordingly. I think it is debatable to deduct "official expenses" from the total amount of crimes when determining the amount of bribery crimes.
The main basis of "official expenditure deduction theory" is that subjectively, it is believed that the actor has no intention of subjective possession, and the actor uses the income for official expenditure, indicating that he subjectively does not want to illegally possess it; Objectively speaking, the actor has no actual possession, because he uses the income for official business, and the actor objectively has no possession of the property of the unit or the property given by the briber.
There are obvious mistakes in the above argument. Cases of embezzling official expenses have a common feature, that is, the behavior that harms society has been implemented, and the defendant (criminal suspect) puts forward the excuse of official expenses after the incident. Judging from the constitution of a crime, once the actor's behavior is implemented, it has the subjective and objective characteristics of the constitutive elements of a crime, which constitutes a crime.
First, according to the relevant provisions of the criminal law, the actor illegally accepts bribes and deliberately takes property for himself, which constitutes a crime. As for how to deal with the offender after illegal possession of property, it does not affect the establishment of illegal possession. The so-called illegal possession means that the actor illegally controls the property objectively and subjectively. Obviously, this does not require the actor to have permanent control over the property. In the case of deduction, the actor realized the illegal control of the property by illegal means, and then used it for official business. It only dealt with the property afterwards and did not affect the establishment of illegal possession. Of course, using the proceeds of crime for official duties shows that the perpetrator is less subjective and vicious, and can be given a lighter punishment when sentencing.
Secondly, from an objective point of view, the harmful behavior referred to in China's criminal law is that the consciousness and will of the actor are externalized to objectively harm the society and are prohibited by the criminal law; As long as the perpetrator commits an act prohibited by the criminal law, it constitutes a harmful act. Whether it constitutes a crime depends on whether the actor's identity, responsibility, subjective psychological state and external performance conform to the provisions of the criminal law. The subjective and objective characteristics of these behaviors are inherent in the process of behavior implementation, and their nature does not change with the situation before or after the behavior occurs. It's like a criminal robbing someone 1000 yuan. Its subjective intention and harmfulness are very obvious. As long as he is capable of criminal responsibility when committing a crime, it constitutes a crime. Whether he will use the stolen money to help the poor or donate it to Project Hope after the robbery does not affect his conviction. The deductive viewpoint confuses the harmful behavior with the official activities of the actor or the use of stolen money, and examines whether the harmful behavior has the characteristics of crime by factors other than the harmful behavior, leaving the inherent characteristics of the behavior, so it cannot reflect the essential characteristics of the behavior, and its conclusion is bound to be wrong.
As far as substantive law is concerned, the whereabouts of stolen money is not a constituent element of a crime. There are at least the following misunderstandings in the view that the destination of stolen money determines the nature of the behavior and it does not constitute a crime as long as it is used for official business:
1. misunderstood the subjective aspects of the composition of property-based duty crimes. As long as the state functionaries take advantage of their positions to accept property, they have the intention of accepting bribes, because at this time, the perpetrator has already obtained illegal actual control, domination and disposal of stolen money and goods, and his legitimate rights and interests have actually been violated. Even if he did use these properties for official duties afterwards, he could not deny his intention of illegally accepting bribes.
2. Ignore the object of property-based duty crime. The view that using stolen money for official duties does not constitute a crime ignores the fact that bribery crimes violate the integrity of state functionaries' job activities.
3. Confuse criminal motive and criminal purpose. Taking the use of stolen money for public or private purposes as a criterion to measure crime and non-crime is essentially to confuse the criminal motive of the actor, that is, why he occupies property, with the criminal purpose of illegal possession of property that the actor directly pursues when carrying out the act.
4. Confuse qualitative evidence with sentencing circumstances. Although the whereabouts of the stolen money can not reflect the subjective intention, it does reflect the criminal motive of the perpetrator. The disposal of stolen money and goods by the actor is a factor that affects sentencing, and different destinations of stolen money may lead to different penalties. If there is evidence to prove that the perpetrator did use the stolen money and goods for official duties, it can be regarded as a lighter, mitigated or exempted punishment. The defendant (criminal suspect) said "for official business" may be justified, but it may also be used to seek illegal interests (such as bribery). In this case, it is not a lighter, mitigated or exempted punishment, but a basis for heavier and heavier punishment. If it constitutes a crime (such as bribery), it should also be punished for several crimes.
5. Distorted the legislative purpose. The purpose of establishing property-based duty crime is to prohibit using the convenience of duty to obtain property by illegal means, no matter where the obtained property is used, in order to ensure the integrity of official duties and the normal management activities of the country.
Ex. 2: A prisoner on death row in a province saw a news when he complained. The news content is that a high school student unfortunately has kidney failure and needs a kidney transplant. The condemned man offered to donate his organs. After he made this request, the hospital helped to make a comparison, which was very consistent and all the conditions were good. However, in the process of preparing for donation, the local higher people's court informed that organ transplantation could not be done on the grounds that the defendant's motives were impure and caused controversy.
Please express your opinion on this matter.
Answer the request:
1. Use your legal knowledge to explain your views and reasons;
2. Full reasoning, rigorous logic, fluent language and accurate expression;
3. The number of words is not less than 500 words.
"Reference example"
It should be a good thing that a condemned man asked to donate his organs to save the life of a dying patient, but the court rejected this request on the grounds that the defendant had bad motives. I think the court's behavior is not only unreasonable, but also illegal.
First of all, from a procedural point of view, whether the court has the power to issue this notice. According to the law of our country, the people's court is the judicial organ of the state and exercises the judicial power of the state. Specific to criminal cases, the task of the court is to correct conviction and sentencing, and the people's court has no right to decide issues unrelated to conviction and sentencing. In this case, the death penalty prisoner asked for organ donation, which did not involve the trial of the case, so the notice of rejecting the request made by the local higher people's court exceeded its authority and was invalid.
Secondly, from the substantive point of view, the reason why the people's court rejected the request of the condemned prisoner is also untenable in substantive law. The people's court held that the main purpose of the death penalty prisoner's request for organ donation was to reduce his sentence, so his motive was not pure. The criminal law of our country stipulates that as long as the actor has general meritorious service, he can be given a lighter or mitigated punishment, and does not require consideration of the actor's motivation. The behavior of the condemned prisoner conforms to one of the general meritorious deeds stipulated in China's criminal law, that is, there are other outstanding performances beneficial to the country and society, so no matter what the motive of the condemned prisoner is, it can be treated leniently, and the reasons for the people's court's rejection lack legal basis.
Third, from the perspective of rights and freedoms, donating one's own organs is the basic right and excuse of any citizen. It is illegal for any organ to restrict these freedoms without legal support, and the people's court is no exception. Especially in the case of shortage of organ resources, voluntary organ donation not only does not infringe on the interests of others, but is doing good for the society and should be supported. Prisoners on death row have not been deprived of their basic human rights. Naturally, he should be allowed to voluntarily donate his kidney to middle school students who are in urgent need of kidney replacement.
Although the practice of the people's court is incorrect from many angles, there is no precedent for organ donation of death penalty prisoners during the second instance proceedings in China, and there is also a lack of corresponding legal provisions for reference, which is the main reason for the court's concern. Although for ordinary people, the law can do it without prohibition, for public rights, there is no provision in the law, which means there is no authorization. Without authorization, the people's court has no basis. Therefore, we believe that the people's court should make corresponding judicial interpretation as soon as possible to solve this problem.