Guiding Cases in Perspective TM TM 指导性案例透视 Dr. Mei Gechlik Founder and Director, China Guiding Cases Project Adrian Lo and Roland C. Reimers Editors, China Guiding Cases Project : CGCP Annotations April 30, 2016 Edition The citation of this piece is: Mei Gechlik, Adrian Lo, & Roland C. Reimers, : CGCP Annotations, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in Perspective TM, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-11/. The authors thank Siqing Li for editing the Chinese version of this piece, Oma Lee for assisting in the translation of the Chinese version into English, and Jordan Corrente Beck for editing the English version. 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 I. The Process of Selecting YANG Yanhu et al., A Graft Case ( or GC11 ) is one of the guiding cases ( GCs ) included in the third batch of GCs released by the Supreme People s Court ( SPC ) on September 18, 2012. 1 Its original judgment and ruling are the (2008) Jin Zhong Xing Er Chu Zi No. 30 Criminal Judgment rendered by the Intermediate People s Court of Jinhua Municipality, Zhejiang Province 2 and the (2009) Zhe Xing Er Zhong Zi No. 34 Criminal rendered by the Higher People s Court of Zhejiang Province. 3 This case was selected as a GC through the following process (see Chart 1): 4 1. In the second half of 2011, the Higher People s Court of Zhejiang Province recommended this case as a candidate GC to the Office for the Work on Case Guidance of the SPC. 2. After research and discussion, the Office for the Work on Case Guidance of the SPC sent this case to the Second Criminal Tribunal for review and comment. On August 25, 2011, considering that this case applied the law correctly, led to good legal and social effects, and was of typical nature, the Second Criminal Tribunal approved the expressions used in the draft Main Points of the Adjudication section and agreed to submit it as a GC. On February 28, 2012, the Research Office of the SPC agreed to submit this case to the Adjudication Committee for discussion after reporting to the leader in charge of the matter. On September 4, the Adjudication Committee of the SPC agreed to select this case as a GC and released it on September 18. 1 杨延虎等贪污案 (YANG Yanhu et al., A Graft Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC11), Nov. 9, 2012 Edition, http://cgc.law.stanford.edu/guidingcases/guiding-case-11. 2 The first-instance judgment has not been found and may have been excluded from publication. Accordingly, these annotations focus on a comparison of GC11 and the second-instance ruling of the underlying case. 3 杨延虎 郑新潮等贪污罪, 杨延虎受贿罪二审 (2009) 浙刑二终字第 34 号 (YANG Yanhu, ZHENG Xinchao et al., Crime of Graft, and YANG Yanhu, Crime of Accepting Bribes Second-Instance, (2009) Zhe Xing Er Zhong Zi No. 34), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in Perspective TM,, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-11/. 4 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), 指导案例 11 号 杨延虎等贪污案 的理解与参照 (Understanding and Referring to, YANG Yanhu et al., A Graft Case), 人民司法 应用 (THE PEOPLE S JUDICATURE APPLICATION), Issue No. 3 (2013). For the process of selecting Guiding Cases, see 最高人民法院关于案例指导工作的规定 (Provisions of the Supreme People s Court Concerning Work on Case Guidance), passed by the Adjudication Committee of the Supreme People s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english/.
3 Chart 1: The Process of Selecting II. Comparison Between and Its Original 1. Basic Facts of the Case Based on the Basic Facts of the Case section of GC11, the following table compares the similarities and differences between GC115 and the original second-instance ruling: 1 Defendant YANG Yanhu 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 2003. 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. Essentially the same. 2 In 2002, after YANG Yanhu learned that Gonghe Village, in the Choucheng Neighborhood of Yiwu Essentially the same, but without the 5 杨延虎等贪污案 (YANG Yanhu et al., A Graft Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Highlighted Edition, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-11/.
4 3 4 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 (the younger sister of YANG Yanhu s wife) and ZHENG Xinchao (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 61.87 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 threeroom 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 1983. 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, 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 following expressions: (A property ownership certificate issued on August 3, 1998 listed the area as 61.87 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. Essentially the same, but without specifying the time frame: In March and April of 2003. Essentially the same, but without the following expressions: the State Land Resources Bureau of Yiwu
5 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. Municipality ; 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 According to WANG Mouxiang s land rights confirmation, he should only have received approval for 36 square meters of construction land. [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 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. 5 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. Essentially the same.
6 6 In addition, from 2001 to 2007, 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. Essentially the same, but with more detailed content. Overall, the Basic Facts of the Case section of GC11 is largely based on the original second-instance ruling. 2. Reasons for the Adjudication The Intermediate People s Court of Jinhua Municipality, Zhejiang Province rendered the first-instance 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 300,000. 2. 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. Dissatisfied with the judgment, all three defendants appealed to the Higher People s Court of Zhejiang Province, which rendered a criminal ruling to reject the appeal and uphold the original judgment. GC11 quite clearly provides the adjudication reasons of the Higher People s Court of Zhejiang Province, but there are still differences. Based on the Reasons for the Adjudication section of GC11, the following table compares the similarities and differences between GC11 and the original second-instance ruling: 1 (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. Essentially the same meaning.
7 (2)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]. (3)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. Not mentioned. Essentially the same meaning. 2 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 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. (1)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 the crime of graft. Essentially the same meaning.
8 (2)Articles 2 and 9 of the Land Administration Law of the People s Republic of China provide that land in [China] is operated [under] the socialist public ownership system, that is, the ownership-by-all-of thepeople system and the collective-ownership-by-thelaborers 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. Not mentioned. Essentially the same meaning, but with the following differences: (3)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. (4)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. (1)The second-instance ruling mentions the exact title of the Yiwu Municipality provisions on demolition, relocation, and resettlement. The second-instance ruling also explains clearly why WANG Yuefang was not a target for demolition, relocation, and resettlement: [a person] who is not a member of the collective economic organization of this village may only be resettled if he has a legal ancestral old house in the village; WANG Yuefang is not a legal villager of Gonghe Village. (2)The second-instance ruling does not use this expression: [qualified] neither [for] obtaining land rights confirmation nor for [obtaining] demolition, relocation, and resettlement compensation. Essentially the same, but without this expression: clearly knew that WANG Yuefang did not meet the demolition, relocation, and resettlement conditions.
9 (5)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. Not mentioned. 3 (6)The land resettled under WANG Yuefang s name was already expropriated to be state-owned and converted to land for construction in August 2002. The Yiwu Municipality government s document Copying and Informing Note also made clear that a state-owned 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 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. Essentially the same. Essentially the same, but without the following expressions: to illegally take possession of public property ; In the joint commission of the crime of graft ; played a primary role ; punish him in accordance with all the crimes that he participated in, organized, or directed ; as accomplices ; and court of second instance. Overall, there are quite a few differences between the Reasons for the Adjudication
10 section of GC11 and the original second-instance ruling. The analysis of these differences touches on the reasons for selecting the case as a GC, which are discussed below. III. Reasons for Selecting According to the Office for the Work on Case Guidance of the SPC, the reason for selecting GC11 is that it resolves difficulties encountered in handling these types of cases during judicial practice and the case has important practical significance for effectively punishing, in accordance with law, new types of crimes of graft arising from new circumstances and for increasing the intensity in combating corruption. 6 Article 382, Paragraph 1 of the Criminal Law of the People s Republic of China (the Criminal Law ) provides: 7 Where a state functionary takes advantage of the conveniences of his office to embezzle, steal, fraudulently obtain, or use other means to illegally take possession of public property, it is the crime of graft. (emphasis added) Does the phrase taking advantage of the conveniences of one s office only refer to property that one is directly in charge of? If so, where does one draw the line between property that [one] is directly in charge of and property that [one] is indirectly in charge of? On this, there are different opinions among criminal law scholars. Moreover, the Criminal Law does not provide a definition of public property, a topic rarely discussed in criminal law scholarship. GC11 clarifies the meanings of these terms and related expressions in the Main Points of the Adjudication, which read: 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. (emphasis added) Therefore, the Office for the Work on Case Guidance of the SPC decided that this case has significant importance, and thus selected it as a guiding case. 6 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 34. 7 中华人民共和国刑法 (Criminal Law of the People s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980, amended nine times, most recently on Aug. 29, 2015, effective as of Nov. 1, 2015, http://pkulaw.cn/bzk/lawdetails.aspx?lawid=256346. Article 382, Paragraph 1 remains the same in the latest amendment to the Criminal Law.
11 IV. Brief Comments With respect to the similarities and differences between GC11 and the original second-instance ruling and to the reasons for selecting the case as a GC, the authors have the following observations. 1. The Main Points of Adjudication of Do Not Appear in the Paragraph 1 of the Main Points of the Adjudication of GC11 provides: 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]. This content appears again in the Reasons for the Adjudication section of GC11, but similar content does not appear in the original second-instance ruling. In addition, Paragraph 2 of the Main Points of the Adjudication of GC11 states: 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. The above content is also included in the Reasons for the Adjudication section of GC11, with the following additional detail: Articles 2 and 9 of the Land Administration Law of the People s Republic of China provide that land in [China] 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. (emphasis added) Therefore, it is clear that the content in the Main Points of Adjudication of GC11 was added when the GC was prepared.
12 The Main Points of the Adjudication section of every GC is critical as this is the section Article 9 of the Detailed Implementing Rules on the Provisions of the Supreme People s Court Concerning Work on Case Guidance 8 instructs courts to make reference to in the adjudication of subsequent, similar cases: Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People s Court, the [deciding] people s court at any level should refer to the Main Points of the Adjudication of that relevant Guiding Case to render its ruling or judgment. (emphasis added) How the Main Points of the Adjudication section of GC11 is understood will affect how GC11 is applied in subsequent cases. For this reason, the authors provide a more in-depth discussion of the significance of these Main Points in the following paragraphs. 2. Does Not Provide the Legal Basis for Paragraph 1 of its Main Points of the Adjudication Section Paragraph 1 of the Main Points of the Adjudication of GC11 reflects the SPC s innovative decision to include [the act of] 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] within the bounds of what is defined as the crime of graft. However, the Reasons for the Adjudication section of this GC does not explain the legal basis of this decision. The Office for the Work on Case Guidance of the SPC attributes this innovative decision to the SPC s reference to the Provisions Concerning Standards for Case Acceptance for the Supreme People s Procuratorate when Directly Handling the Case Acceptance and Investigation of Cases (Tentative) ( 1999 Provisions ) published on September 16, 1999 by the Supreme People s Procuratorate and the Summary of the Symposium on the Handling of Economic Crime Cases by Courts in the Country ( 2003 Summary ) published on November 13, 2003 by the SPC. 9 In the 1999 Provisions, the Supreme People s Procuratorate defined taking advantage of the conveniences of one s office in the context of the crime of accepting bribes as taking advantage of the power within the scope of one s office, that is, the authority of one s office to be in charge of, be responsible for, or to undertake certain public affairs, and the conveniences arising from such [authority]. The Supreme People s Procuratorate also stated: where a state functionary takes advantage of the conveniences arising from his authority or status to seek improper benefits for an entrusting person through other state functionaries official acts, and demands property from the entrusting person or accepts the entrusting person s property, [the state functionary] shall be held criminally liable under the 8 最高人民法院关于案例指导工作的规定 实施细则 (Detailed Implementing Rules on the Provisions of the Supreme People s Court Concerning Work on Case Guidance ), passed by the Adjudication Committee of the Supreme People s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/. 9 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 35.
13 crime of accepting bribes. However, the 1999 Provisions are silent on whether this same standard is to be used when analyzing taking advantage of the conveniences of one s office in the context of the crime of graft. In the 2003 Summary, the SPC explained even more directly that the phrase taking advantage of the conveniences of one s office in the crime of accepting bribes includes not only taking advantage of the authority of one s office to be in charge of, be responsible for, and to undertake certain public affairs, but also taking advantage of the authority of other state functionaries who, in relation to [the official s] office, are in a subordinate or constrained relationship [to the official]. However, the 2003 Summary is similarly silent on whether this applies in the context of the crime of graft. This leads to two questions. First, since neither of the two documents above applied their commentary on how to understand tak[ing] advantage of the conveniences of one s office in the crime of accepting bribes to the crime of graft, how do we explain the SPC s change of approach in GC11? Second, how do we define other state functionaries who, in relation to [the official s] office, are in a subordinate relationship [to the official]? Does this need to be a relationship of direct subordination, or can it include any state functionary who is indirectly managed by the same leader? 3. The Reasons for the Adjudication Section of Does not Clearly Explain Paragraph 2 of its Main Points of the Adjudication Section With respect to the notion that land-use rights are within the scope of public property under Article 382, Paragraph 1 of the Criminal Law, the SPC has not clarified its views. The Reasons for the Adjudication section of GC11 only states: Articles 2 and 9 of the Land Administration Law of the People s Republic of China provide that land in [China] 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. Here, the authors would like to offer supplementary analysis. According to Article 2 of the Land Administration Law of the People s Republic of China, the People s Republic of China implements a socialist public ownership system for land, that is, the ownership-by-allof the-people system and the collective-ownership-by-the-laborers system. Ownership by all of the people means that ownership of all state land is exercised by the State Council on behalf of the country. No units or individuals can occupy, buy or sell, or use other means to
14 illegally transfer land. 10 Article 9 of that law provides: land that is state-owned or collectively owned by farmers may, in accordance with law, be designated for use by units or individuals. 11 Due to the fact that the definition of public property in Article 91 of the Criminal Law includes state-owned property and property collectively owned by the laborers, and that land is operated [under] the ownership-by-all-of the-people system and the collective-ownership-by-the-laborers system, therefore, land is a type of state-owned property or property collectively owned by the laborers. Based on this, the SPC inferred that land is public property. 12 Since land is a type of public property, the illegal occupation of land-use rights is similar to the illegal occupation of practical property. Both result in economic benefit. Therefore, land-use rights yield property interests and are a type of property. Thus, land-use rights can become an object of graft. According to the explanation offered by the Office for the Work on Case Guidance of the SPC, 13 the SPC s opinion that land-use rights are a type of property can be understood by reference to two documents. First, the Opinions on Several Issues Concerning the Application of Law in Handling Commercial Bribery Criminal Cases issued by the SPC and the Supreme People s Procuratorate in 2008. Article 7 of the document defines property in the context of commercial bribery to include not only money and physical objects, but also property interests that can be calculated in monetary terms. Second, the Interim Measure on the Determination of Property Rights and the Settlement of Property Rights Disputes Concerning State-Owned Assets promulgated by the National State-Owned Assets Administration Bureau in December 1993. In this document, currency, physical objects, and assets consisting of such land-use rights and intellectual property rights that are owned by the state are determined to be state-owned assets. 14 Finally, it is important to recognize that the scope covered by the Main Points of the Adjudication is not necessarily limited to state-allocated land. Questions remain: Does the Main Points of the Adjudication section extend to land-use rights that are already transferred in accordance with law? As land-use rights that have already been transferred in accordance with law no longer have a clear public nature, does this mean that they should not be regarded as public property? How courts at all levels interpret these issues when handling subsequent cases is worthy of attention. 10 中华人民共和国土地管理法 (Land Administration Law of the People s Republic of China), passed and issued on June 25, 1986, effective as of Jan. 1, 1987, amended two times, most recently on Aug. 28, 2004, effective as of Aug. 28, 2004, Article 2, http://news.xinhuanet.com/zhengfu/2004-08/30/content_1925451.htm. 11 Id. Article 9. 12 中华人民共和国刑法 (Criminal Law of the People s Republic of China), supra note 7, Article 91; 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 36. 13 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 36. 14 See id.