Guiding Cases in Perspective TM 指导性案例透视. CHINA GUIDING CASES PROJECT Guiding Case No. 11 Highlighted Edition April 30, 2016 *

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1 Guiding Cases in Perspective TM TM 指导性案例透视 YANG Yanhu et al., A Graft Case Guiding Case No. 11 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on September 18, 2012) CHINA GUIDING CASES PROJECT Guiding Case No. 11 April 30, 2016 * * The citation of this piece is: 杨延虎等贪污案 (YANG Yanhu et al., A Graft Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in Perspective TM, Guiding Case No. 11 Highlighted Edition, Apr. 30, 2016, The parts highlighted below are essentially the same as the relevant parts in the original second-instance ruling of Guiding Case No. 11. Parts highlighted in yellow and red cover contents included in the Basic Facts of the Case and the Reasons for the Adjudication sections of Guiding Case No. 11, respectively. The English version of this Guiding Case was published by the China Guiding Cases Project on November 9, 2012 and is also available at the abovementioned hyperlink. Guiding Cases in Perspective TM is a unique serial publication of the China Guiding Cases Project that identifies the original judgments selected by the Supreme People s Court, examines their transformation into Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.

2 2 Keywords Criminal Crime of Graft Conveniences of Office Fraudulently Acquire Land Use Rights Main Points of the Adjudication 1. In the crime of graft, taking advantage of the conveniences of one s office refers to taking advantage of the power and convenient conditions of one s office to be in charge of, to manage, and to handle public property. It includes not only taking advantage of the conveniences of one s office to be in charge of and to manage public property, but also taking advantage of the conveniences of the offices of other state functionaries who, in relation to [the official s] office, are in a subordinate relationship [to the official]. 2. Land-use rights carry property interests, are within the scope of public property under Article 382, Paragraph 1 of the Criminal Law, and can become an object of graft. Related Legal Rule(s) Article 382, Paragraph 1 of the Criminal Law of the People s Republic of China Basic Facts of the Case Defendant YANG Yanhu ( 杨延虎 ) served as a member of the Standing Committee of the CPC Yiwu Municipal Committee, Zhejiang Province in August 1996, and served as Deputy Director of the Standing Committee of the People s Congress of Yiwu Municipality in March In August 2000, he also served as Deputy Group Leader for the Construction Leadership Group of the Futian Market of the China Small-Commodity City (name changed in March 2003 to the China Yiwu International Trade City; hereinafter referred to as the International Trade City ) and as General Director for the [Construction] Directorate of the Futian Market, presiding over the overall work of the Directorate. In 2002, after YANG Yanhu learned that Gonghe Village, in the Choucheng Neighborhood of Yiwu Municipality, would be included in the scope of the demolition, relocation, and old village renovation, he decided to purchase an old home in that village and take advantage of the conveniences of his office to fraudulently obtain illegal benefits during the demolition, relocation, and resettlement. YANG Yanhu then conspired with defendants WANG Yuefang ( 王月芳 ) (the younger sister of YANG Yanhu s wife) and ZHENG Xinchao ( 郑新潮 )

3 3 (WANG Yuefang s husband), and had WANG and ZHENG personally buy, through a certain WANG from Gonghe Village, an old three-room home in that village from a certain ZHAO in WANG Yuefang s name. (A property ownership certificate issued on August 3, 1998 listed the area as square meters.) According to the demolition, relocation, and old village renovation policies in that area, ZHAO would receive the same amount of resettlement land regardless of whether he owned that old home; in fact, ZHAO received land resettlement as a household without home ownership. In March and April of 2003, in order to confirm WANG Yuefang s right to the land occupied by the old three-room home, ZHENG Xinchao, under the direction and by arrangement of YANG Yanhu, once again went through WANG of Gonghe Village to ask the villagers committee of that village and its members to issue a false certificate certifying that that old three-room home was built by WANG Yuefang in YANG Yanhu took advantage of the conveniences of his office, demanding of a certain WU, who served as the Deputy General Director in charge of land rights confirmation work for the Construction Directorate of the International Trade City [and] Deputy Director of the State Land Resources Bureau of Yiwu Municipality, and of other personnel of the Rights Confirmation and Approval Division of the Directorate, to take care of WANG Yuefang during the demolition, relocation, resettlement, and land rights confirmation. The Construction Directorate of the International Trade City thereupon performed a rights confirmation audit of the home purchased by WANG Yuefang, treating it as an old home certified by the village but not accompanied by a certificate of title, reported to the State Land Resources Bureau of Yiwu Municipality for rights confirmation, and confirmed that [the home] occupied a land area of 64.7 square meters according to the measurement result. Thereafter, defendants YANG Yanhu, ZHENG Xinchao, and WANG Yuefang conspired. On the basis that WANG Mouxiang, YANG s father-in-law, could receive confirmed land rights to 25.5 square meters of land during the demolition and relocation of Gonghe Village, they fabricated in January 2005 an application report signed by WANG Yuefang et al., claiming falsely that: WANG Mouxiang and WANG Yuefang jointly owned a home with three and a half rooms occupying an area of 90.2 square meters. The two divided up the property in 1986, with WANG Mouxiang receiving 36.1 square meters and WANG Yuefang receiving 54.1 square meters. The relevant department confirmed in error that WANG Mouxiang had a home of 25.5 square meters and that WANG Yuefang had a home of 64 square meters. [They] demanded that the State Land Resources Bureau of Yiwu Municipality make corrections. Afterwards, YANG Yanhu took advantage of the conveniences of his office to direct the personnel of the Construction Directorate of the International Trade City to seal and confirm the application report in the name of that group, and have the application report receive the approval of the State Land Resources Bureau of Yiwu Municipality and the Yiwu Municipal Government. This, therefore, allowed WANG Yuefang and WANG Mouxiang to receive approval for

4 4 construction land with areas of 72 square meters and 54 square meters (totaling 126 square meters), respectively. According to WANG Mouxiang s land rights confirmation, he should only have received approval for 36 square meters of construction land, [and] the other 90 square meters were acquired illegally. In May 2005, after spending RMB 245,520 on location selection fees, YANG Yanhu et al. received two shops in the demolition, relocation and resettlement zone of the International Trade City with a land area of 72 square meters as demolition, relocation, and resettlement compensation (after this case was exposed, land-use rights for those 72 square meters of land were frozen in accordance with law). Prior to being used as resettlement land, that area of land had already been expropriated by the state and converted to construction land and was state-allocated land. An evaluation determined that the value of the land-use rights was RMB 35,270 per square meter. The 90 square meters of construction land acquired illegally by YANG Yanhu et al., in accordance with demolition, relocation, and resettlement regulations in that area, amounted to the 72 square meters land area of the shops in the demolition, relocation and resettlement zone, valued at RMB 2,539,440. After deducting the RMB 245,520 paid by YANG et al., the real [value of the] illegal acquisition was RMB 2,293,920. In addition, from 2001 to 2007, defendant YANG Yanhu took advantage of the conveniences of office to seek benefits through helping others to contract construction projects, [to engage in] demolition, relocation, and resettlement, [and to] transfer state-owned land. In total, he illegally accepted or demanded RMB 570,000, of which RMB 50,000 were bribes demanded. Results of the Adjudication On December 15, 2008, the Intermediate People s Court of Jinhua Municipality, Zhejiang Province, rendered the (2008) Jin Zhong Xing Er Chu Zi No. 30 Criminal Judgment: 1. Defendant YANG Yanhu is guilty of the crime of graft and sentenced to 15 years of fixed-term imprisonment and RMB 200,000 of his property is confiscated; [YANG is also] guilty of the crime of accepting bribes and sentenced to 11 years of fixed-term imprisonment and RMB 100,000 of his property is confiscated; [the court] decides to enforce a fixed-term imprisonment of 18 years and to confiscate property of RMB 300, Defendant ZHENG Xinchao is guilty of the crime of graft and sentenced to five years of fixed-term imprisonment. 3. Defendant WANG Yuefang is guilty of the crime of graft and sentenced to three years of fixed-term imprisonment. After the judgment was pronounced, all three defendants appealed. On March 16, 2009,

5 5 the Higher People s Court of Zhejiang Province rendered the (2009) Zhe Xing Er Zhong Zi No. 34 Criminal Ruling to reject the appeal and uphold the original judgment. Reasons for the Adjudication In the effective judgment, the Court opined: 1 With respect to the defense views put forward by defendant YANG Yanhu s defender that YANG Yanhu did not take advantage of the conveniences of office. 2 According to investigation, the Directorate of the International Trade City of Yiwu was an institution established by the Yiwu Municipal Committee and the [Yiwu] Municipal Government to ensure the smooth implementation of construction projects in the International Trade City. The Land Rights Confirmation and Approval Division was established under the Directorate, and [its] personnel were transferred from the State Land Resources Bureau. The [Division] was in charge of the confirmation of land rights, as well as the approval and reporting work regarding land for building houses or construction. WU, the Deputy General Director of that division, was also the Deputy Director of the State Land Resources Bureau. The Rights Confirmation and Approval Division was a subsidiary body of the Directorate, and at the same time was under the leadership of the Directorate. As the General Director of the Directorate, YANG Yanhu had leadership authority over this division. In the crime of graft, taking advantage of the conveniences of office refers to taking advantage of the power and convenient conditions of one s office to be in charge of, to manage, and to handle public property. It includes not only taking advantage of the conveniences of one s office to be in charge of and to manage public property, but also taking advantage of the conveniences of the offices of other state functionaries who, in relation to [the official s] office, are in a subordinate relationship [to the official]. In this case, YANG Yanhu indeed took advantage of the conveniences of his office as a member of the Standing Committee of the CPC Yiwu Municipal Committee, as the Deputy Director of the Standing Committee of the People s Congress of Yiwu Municipality, and as the General Director of the Directorate to informally contact 3 the personnel of the subordinate Rights Confirmation and Approval Division and its Deputy General Director, thereby effecting the demolition, relocation, and resettlement falsely reported by WANG Yuefang et al. With respect to the defense views put forward by defendants YANG Yanhu et al. and their defenders that defendant WANG Yuefang should have received land resettlement compensation and the land involved in the case was collective land and [thus their actions] could not constitute 1 Translators note: The Chinese text does not specify which court opined. Given the context, this should be the Higher People s Court of Zhejiang Province. 2 Translators note: The Chinese text has a period here, rendering a sentence fragment. 3 Translators note: The Chinese text has 打招呼, which carries a meaning that no single English expression, including informally contact, can fully capture. In this context, the term suggests that YANG contacted his subordinates, telling them to take care of WANG et al., without giving them exact work orders. Considering that YANG was a leader, YANG s subordinates would give YANG face by treating WANG et al. favorably.

6 6 the crime of graft. According to investigation, WANG Yuefang was [holding] a resident household when she bought the property. According to the legal provisions and related Yiwu Municipality provisions on demolition, relocation, and resettlement, [WANG Yuefang] was not a target for demolition, relocation, and resettlement, and did not have the qualification to receive land rights confirmation. [Moreover], the property that WANG purchased in Gonghe Village [qualified] neither [for] obtaining land rights confirmation nor for [obtaining] demolition, relocation, and resettlement compensation. YANG Yanhu et al. clearly knew that WANG Yuefang did not meet the demolition, relocation, and resettlement conditions, yet took advantage of the convenience of YANG Yanhu s office, by falsely reporting that the property that WANG Yuefang had purchased was an old home passed down by her ancestors and by fabricating the division of family property between WANG Yuefang and WANG Mouxiang, to fraudulently obtain the demolition, relocation, and resettlement qualification of the old home and to fraudulently obtain the state land rights confirmation. At the same time, YANG Yanhu took advantage of the conveniences of office, [and] YANG Yanhu, WANG Yuefang, et al. committed fraud; [these acts] not only made ZHAO, the owner of the old home purchased by WANG Yuefang, receive land resettlement compensation as a houseless household, but also made WANG Yuefang, who should not have received land resettlement compensation, receive land resettlement compensation. Articles 2 and 9 of the Land Administration Law of the People s Republic of China provide that land in [China] 4 is operated [under] the socialist public ownership system, that is, the ownership-by-all-of the-people system and the collective-ownership-by-the-laborers system, and may, in accordance with the law, be designated for use by units or individuals. The possession, use, development, operation, transaction, and circulation of land can bring corresponding economic benefits. Therefore, land-use rights naturally have property interests and they, regardless of whether the land is state-owned or collectively owned, are regarded as public property as stipulated in Article 382 Paragraph 1 of the Criminal Law and can become the object of graft. The land resettled under WANG Yuefang s name was already expropriated to be state-owned and converted to land for construction in August The Yiwu Municipality government s document Copying and Informing Note also made clear that a stateowned land-use certificate was issued for the registration of the rights to use land for demolition, relocation, and resettlement for that area. Thus, the defense views put forward by YANG Yanhu et al. and their defenders could not stand. In summary, defendant YANG Yanhu, as a state functionary, took advantage of the conveniences of his office as a member of the Standing Committee of the CPC Yiwu Municipal Committee, as the Deputy Director of the Standing Committee of the People s Congress of Yiwu Municipality, and as the General Director of the Directorate of the International Trade City, in collusion with defendants ZHENG Xinchao and WANG Yuefang to fabricate a story, to fraudulently obtain state-owned land-use rights and to illegally take possession of public property. The acts of these three defendants all constituted the crime of graft. YANG Yanhu also took 4 Translators note: The Chinese text has 我国 ( my country ).

7 7 advantage of the conveniences of office to demand or accept bribes offered by others and to seek benefits for others. His acts also constitute the crime of accepting bribes, and [YANG] should receive a combined punishment for multiple crimes in accordance with law. In the joint commission of the crime of graft, YANG Yanhu played a primary role as the primary culprit, and [the courts] should punish him in accordance with all the crimes that he participated in, organized, or directed; whereas ZHENG Xinchao and WANG Yuefang played secondary roles as accomplices, and [the courts] should mitigate [their] punishment. Therefore, the courts of first and second instance rendered the above adjudication in accordance with law.