Whether the behavior of transferring shares at a premium constitutes the crime of taking bribes

2022-07-28 0 By

The second Branch of Tianjin People’s Procuratorate, Tianjin People’s Procuratorate source: Procuratorial Daily Zhang Mou, the general manager of a state-owned investment company, and li Mou, the head of a construction company, contacts closely.Since 2010, Zhang has repeatedly taken advantage of his position to provide help for Li’s company in project financing.In May 2012, zhang’s wife Wu shares and management of a partnership fund equity investment risk, can not pay investors on schedule, Zhang put forward the fund investment risk of equity sold to Li, the price is the fund needs to pay investors principal and interest amount of 4.2 million yuan, Li agreed.In August 2012, Li mou with 4.2 million yuan of the price of the acquisition of fund holding equity.After evaluation, the market value of the equity transaction held by the fund is 1.4 million yuan, and The actual price premium of Li is 2.8 million yuan.Because wu mou actually controls a consulting company is the general partner of the fund, according to the company’s investment proportion, Wu Mou actually gains 170,000 yuan.Whether zhang’s behavior constitutes bribery, and how to identify the amount of bribery, there are three different opinions.The first opinion that Zhang’s behavior does not constitute bribery.The reason is: both sides of the equity transaction is li mou company and partnership fund.The transaction price of RMB 4.2 million was determined by both parties through communication. Although the price is higher than the value of the equity at that time, the premium treatment is a common situation of equity investment, and the possibility of normal investment cannot be ruled out.The second opinion thinks, zhang mou’s behavior constitutes the crime of taking bribes, the amount of bribery for the specific relationship wu mou’s actual gains 170,000 yuan.The reason is: the calculation of the amount of bribery should be based on the amount of property benefits actually obtained by the doer.Under the instruction of Zhang, Li acquired the equity held by the fund at the price of 4.2 million yuan, but the equity premium of 2.8 million yuan needs to be distributed within the fund in accordance with the investment agreement;Wu’s company in addition to the actual profit of 170,000 yuan in proportion, the rest for other investors, should not be included in the amount of bribery.The third opinion that Zhang’s behavior constitutes the crime of taking bribes, the amount of bribery should be in accordance with the equity value and transaction price difference of 2.8 million yuan identified.The reason is: in nature judgment, although the case is nominally a market behavior of equity transaction, but because the transfer of equity is proposed by Zhang To Li, and Zhang’s wife Wu is the investor and the actual manager of the fund, so the subjective intention of both parties to take bribes is obvious.In terms of the amount, both parties have determined the transaction price, and the compensation price is also within the scope of mutual agreement.Equity transaction completed, bribery has already completed;Wu mou to 2.8 million yuan of the bonus redistribution to investors, belongs to the later disposal of the stolen money after completion, does not affect the determination of the amount of crime.The author agrees with the third opinion for the following reasons: From the qualitative perspective of behavior, the essence of premium equity transfer is power-for-money transaction.The essence of bribery is power-for-money transaction, that is, taking advantage of position to seek benefits for others.In this case, the behavior of selling equity at a premium has the essential characteristics of power-for-money transaction.From the point of view of the bribe-taker, Zhang’s wife Wu is the investor and manager of the partnership fund, and they are a community of interests, and the operation of the fund directly determines the economic benefits of their family.In order to resolve the redemption risk that Wu’s management fund faces, Zhang made clear that Li invested in the acquisition of the equity invested by the fund, and its intention and behavior of profiting from power and abusing power for personal gain are obvious.From the point of view of the briber, the briber Li did not conduct due diligence and evaluation on the operating status and equity value of the target enterprise, but according to the amount of the fund needs to pay investors to determine the equity purchase price, the intention of bribery is clear.Therefore, the purchase behavior of equity premium in this case is not a normal investment behavior, but essentially a bribery behavior of transferring interests under the cover of equity transaction.Zhang’s behavior constitutes the crime of taking bribes undoubtedly.From the amount of recognition, after the completion of the bribery of property does not affect the amount of recognition.According to the fund investment agreement, Wu actually received 170,000 yuan in income, but this does not negate the 2.8 million yuan in bribes.The determination of the amount of the crime of accepting bribes in this case should grasp two points: one is to clarify the scope of agreement of both parties to the amount of the crime;The second is to accurately judge the nodes of bribery completed, bribery completed, the actor how to dispose of property does not affect the amount of determination.According to the subjective agreement of both parties, the 2.8 million yuan bonus is the criminal object of both parties taking bribes.The 2.8 million yuan of the equity transaction premium is li’s reward for Zhang’s duty behavior. Both parties have a clear and consistent understanding of this. Subjectively, both parties do not exclude the occurrence of the equity premium acquisition behavior, and the 2.8 million yuan of the premium is within the agreed range of both parties.From the criminal point of view, Zhang’s wife Wu is the investor and manager of the fund, the money in the fund account has control, management power.Therefore, when The purchase of li mou to pay the fund’s bank account, Wu mou that is to gain control of 2.8 million yuan of the price, the crime has been completed, the amount of bribery should also be calculated with premium of 2.8 million yuan;And Wu in the fund of the internal distribution of the bonus disposal, including its own final share of 170,000 yuan, belongs to the punishment of the property after the completion of the bribery, control behavior.According to the provisions of the 16th Article of the “Two high” “Interpretation of several issues concerning the application of law in dealing with corruption and bribery criminal cases”, the stolen money used for unit expenditure after taking bribes does not affect the determination of the crime of taking bribes, but it can be considered when sentencing.Therefore, the amount of bribery in this case should be identified as 2.8 million yuan, and the distribution of the reward and actual income should be considered as the sentencing circumstances.Submission reprint description Submission email: 543183107@qq.com The public number non-profit do not pay remuneration contribution is deemed to agree to the public number of the article reprint and publish