全国关注、举世瞩目的薄熙来贪腐案件，在2013年8月22日至26日一审公开审理后近一个月，9月22日济南市中级人民法院又公开开庭宣布了一审判决，从而标志着本案一审的终结。对这起具有重大社会影响、受到广泛关注的案件，有关办案机关严格依法查处，尤其是一审法院的公开开庭审理严格遵循刑事诉讼法和刑法的规定，在审判公开、切实保障被告人诉讼权利、关键证人出庭作证等方面成为引人注目的亮点，使本案一审成为重大、敏感案件审理中遵循刑事诉讼程序、公开、公正审理的一个典范，其弘扬法治精神、彰显反腐决心、贯彻平等司法暨促进法制教育的多重法治意义亦获得充分肯定。在庭审获得极大成功的基础上，一审判决又以其事实清楚、证据确实充分和说理透彻、法律适用正确妥当的面目问世，尤其是判决书后半部分针对被告人薄熙来及其辩护人提出的辩解和辩护意见归纳出20个问题，根据案件查明的事实和经庭审查证属实的证据，逐一进行了合法合理的评判，从而使得本案的法理根据扎实，而且也必然会增强社会的认同感。这20个问题中，多数为刑事诉讼法方面的证据和刑事诉讼程序问题，也有部分为刑法方面的有关定罪量刑的问题。本文拟简要地分析本案一审庭审和判决中的刑法方面的定罪量刑问题。

一、关于受贿罪的认定

受贿罪是典型的权钱交易性质的腐败犯罪，是指国家工作人员利用职务上的便利，索取他人财物的，或者非法收受他人财物并为他人谋取利益的行为。本案一审判决认定薄熙来构成受贿罪的事实是：1999年至2012年，被告人薄熙来在担任大连市人民政府市长、中共大连市委书记、辽宁省人民政府省长、商务部长期间，利用职务上的便利，为大连国际公司及该公司总经理唐肖林、实德集团谋取利益，收受唐肖林给予的钱款，明知并认可其妻薄谷开来、其子薄瓜瓜收受实德集团董事长徐明给予的财物，共计折合人民币2044.7万余元。对照受贿罪的构成要件和案件事实，作为国家工作人员且身居要职的被告人薄熙来，在权钱交易的明确认知和意图之下，具备了非索贿型的普通受贿罪的两个要件：他一方面利用职务便利为唐肖林负责的大连国际公司接收大连驻深圳办事处和唐肖林申请汽车进口配额提供帮助，为实德集团收购大连万达足球队和建设定点直升机项目、申报实德石化项目提供帮助，从而具备了受贿罪利用职务便利为他人谋取利益的要件；另一方面，他直接接受唐肖林给予的钱款折合人民币110.9万余元，明知并认可其妻、其子收受徐明给予的财物折合人民币1933.79万余元，从而具备了受贿罪收受他人财物的要件。关于受贿罪的认定，结合庭审情况及一审判决的认定，有以下两个问题需要予以探讨和明确：

其一，怎样看待薄熙来对其妻、其子收受徐明财物知情和认可就构成受贿罪？其中又有几点：（1）薄熙来是否知情和认可？被告人薄熙来的辩解及其辩护人的辩护意见提出，不能认定薄熙来对薄谷开来收受徐明钱款用于购买法国别墅一事知情，薄熙来对于徐明为薄谷开来、薄瓜瓜等人支付机票、旅费及购买电动平衡车、归还信用卡欠款等均不知情。一审判决根据庭审查实的多种在案证据，已判定薄熙来对其妻、其子收受徐明财物知情且认可。（2）薄熙来是否具备受贿罪的主观要件？被告人薄熙来和其妻、其子与徐明之间，自1999年至2012年间长达十几年的时间里，双方已形成权钱交易的概括的、长期的意思联络即故意心态，即薄熙来利用职务便利为徐明的实德公司谋取利益，徐明给予薄熙来之妻、子和家庭以财物回报。对双方这种权钱交易的实质关系，双方均是心知肚明，对此不仅有薄谷开来、徐明的证言证实，被告人薄熙来在其自书材料和亲笔供词中也有合乎情理的描述与认可。在这种权钱交易的概括故意、长期故意的心态之下，被告人薄熙来对其妻、其子收受徐明财物不知具体细节当然不影响其主观之明知；其对具体财物的事后知情和认可也是包含在其事前、事中的概括性权钱交易主观意图之中的，并不影响对其受贿罪主观要件的认定。（3）薄熙来没有直接收受徐明财物是否就不构成受贿？回答是否定的。受贿罪的客观要件中包含了复合行为，一是承诺实施或具体实施利用职务便利为行贿人谋取利益的行为，此种行为须由国家工作人员实施；二是基于承诺实施或具体实施上述行为而收受行贿人钱财的行为，此种接受财物的行为既可由国家工作人员本人实施，也可由与该国家工作人员具有意思联络者实施。实践中，国家工作人员利用职务便利为他人谋取利益，其亲属为此接受他人之钱财的案件比比皆是，对此类案件毫无疑问应认定为受贿罪。所以，薄熙来利用职务便利为徐明的公司谋取利益，薄熙来之妻、子因此而收受徐明的钱财，薄熙来对此知情和认可，薄熙来当然构成受贿罪。如此定性，既符合相关法律和法理，也是我国司法实践中的通行做法。

其二，“公事公办”是否构成受贿罪中的利用职务便利为他人谋取利益？在薄熙来案件一审庭审实录中，我们看到被告人薄熙来多次辩解说，他对唐肖林公司和徐明公司的支持都是“公事公办”，辩护人也辩护说这都是薄熙来依法履行职务的行为，因而对指控薄熙来构成受贿罪为他人谋取利益行为之要件予以质疑。公诉人反驳说即使“公事公办”也不影响受贿罪的成立，一审判决支持公诉意见而认定被告人构成了受贿罪。应当怎样看待这个问题？根据我国刑法规定、刑法理论与司法实践，受贿罪的本质是权钱交易，至于行为人为请托人谋取利益的手段既可以是合法的也可以是非法的，行为人为请托人谋取的利益既可以是正当的也可以是不正当的，只要行为人实施了权钱交易的行为，无论其是“贪赃枉法”还是“贪赃不枉法”，均不影响其受贿罪的成立。当然，“贪赃枉法”与“贪赃不枉法”两种不同的情形在受贿罪成立的基础上对危害程度是有不同影响的。所以，薄熙来为唐肖林和徐明谋取利益是否违反了其职责，并不影响其受贿罪的成立与否。

二、关于贪污罪的认定

贪污罪也是主要的腐败犯罪罪种。我国刑法中典型的贪污罪，是指国家工作人员利用职务便利，侵吞、窃取、骗取或者以其他手段非法占有公共财物的行为。本案一审判决认定被告人薄熙来构成贪污罪的事实是：薄熙来在2000年担任中共大连市委书记期间，负责了大连市政府承担的上级单位涉密场所的改造工作；2002年工程完工后，经具体承办该工程的大连市城乡规划土地局局长王正刚提议，时任辽宁省人民政府省长的薄熙来同意并授意王正刚与其妻薄谷开来，再由薄谷开来与王正刚商议和安排，将上级单位拨给大连市人民政府的500万元工程款截留转至薄谷开来指定的北京昂道律师事务所主任赵东平处，薄谷开来让赵为其代管这笔款项。一审法院据此认定薄熙来身为国家工作人员，利用职务便利，伙同他人侵吞公款500万元，其行为已构成贪污罪。被告人薄熙来及其辩护人针对贪污罪指控所提出的主要辩解和辩护意见是：其一，在所指控的贪污事实发生时，薄熙来系担任辽宁省政府省长一职，不能直接决定、支配大连市的财政事务，故薄熙来不具备构成贪污罪所需的职务便利；其二，薄熙来主观上没有贪污公款的主观故意，客观上他也未实施侵吞公款的行为，故他不构成贪污罪。那么，应当怎样看待这两个问题？

首先，关于薄熙来在此项贪污事实中是否具有职务便利？一审判决认定薄熙来具有职务便利，并提出了两点理由：一是薄熙来作为辽宁省人民政府省长，其职权覆盖辽宁省辖下的大连市；二是薄熙来作为该涉案工程的原负责人，他当时对该工程仍负有特定的延续、管理职责，具有管理、支配涉案款项的职务便利。一审法院的这两点理由是合乎案件事实并有充分确凿的证据支持的，是合乎法理、情理的，因而其结论也是成立的。而且更为重要的还在于，被告人薄熙来实际上也是行使了支配此笔款项的职权。同时，还要看到，作为工程具体负责人的王正刚当然是具有无可辩驳的管理工程款项的职权的，退一步讲，即便薄熙来根本不具有管理、支配此项钱款的职务便利，但他伙同王正刚并在王正刚的帮助下，由其妻子非法占有此笔钱款，他也当然构成贪污罪，只不过此种情况下他已不是利用自己的职务便利而是利用王正刚的职务便利而已。

其次，关于薄熙来是否具备贪污罪的主客观要件？贪污罪的主观要件是行为人具有利用自己的职务便利非法占有公共财物的故意心态和犯罪目的，其客观要件是行为人实施了利用职务便利非法占有公共财物的行为。案件审理查明，被告人薄熙来身为国家工作人员并负责管理该项工程事宜，他在具体负责人王正刚提议将500万元工程款截留给其家庭的情况下，同意并授意王正刚与其妻子薄谷开来商量处理，实际上就是同意把这笔款项转给薄谷开来，事实上王正刚和薄谷开来也正是按照薄熙来的意思处理的，最终导致这笔款项由薄谷开来控制和占有。这里，薄熙来的同意和对王正刚、薄谷开来的授意就是其利用职务便利伙同王正刚、薄谷开来非法占有这笔款项的行为，此行为完全符合贪污罪的客观行为特征；同时，通过这一同意和授意行为，被告人薄熙来非法占有这笔款项的主观意图和目的也明确无疑，而且被告人实际上也实现了贪污罪这一主观意图和犯罪目的。被告人薄熙来辩称他之所以同意王正刚去找薄谷开来商议，只是因为该款不好处理，想让薄谷开来帮忙妥善解决，而不是想要其家庭非法占有。正如一审判决所评判：这一辩解得不到相关证据的印证，且完全不符合常理。试以常理衡量：此笔款项再不好处理，若薄熙来不想非法占为己有，他尽可指示王正刚上交给大连市人民政府并简要说明即可，何用让王正刚去找并非大连市政府工作人员也与此款毫无关系且身为其妻的薄谷开来去商量怎么处理？薄熙来让王正刚与薄谷开来商量的，就是怎么样安全地由薄谷开来也即薄熙来家庭非法占有这笔款项。事实也正是按此逻辑和情理演进的，经过王正刚与薄谷开来的商议和安排，这笔款项经过几个环节的掩盖进入了薄谷开来指定的账户并为其所控制和占有，薄谷开来证言中说她把此笔款项的事已办好告诉了薄熙来，薄熙来并无反对意见和追回要求，此笔款项就这样瞒天过海地成为了薄熙来家庭的财产，直到此次案发才被查处。上述事实和情理也充分说明了薄熙来关于自己无非法占有此笔公款目的之辩解的苍白无力和完全不成立。

三、关于滥用职权罪的认定

滥用职权罪是一种故意越权而构成的渎职犯罪，是指国家机关工作人员超越职权，违法决定、处理其无权决定的、处理的事项，或者违反规定处理公务，致使公共财产、国家和人民利益遭受重大损失的行为。根据本案一审判决所认定，2012年1月28日至2月期间，被告人薄熙来作为中共中央政治局委员兼中共重庆市委书记，在有关人员告知其薄谷开来涉嫌故意杀人后，以及王立军叛逃到美国驻成都总领事馆前后，违反规定实施了一系列滥用职权的行为：（1）1月28日晚，市公安局长王立军将薄谷开来涉嫌杀人事告诉薄熙来；1月29日上午，薄熙来召集王立军、郭维国（市公安局副局长）、吴文康（市委副秘书长兼市委办公厅主任）谈话，斥责王立军诬陷薄谷开来并对王立军打骂；1月29日晚，根据薄谷开来的要求，薄熙来安排吴文康对揭发薄谷开来涉嫌杀人的公安侦查人员王智、王鹏飞进行调查。通过上述行为，阻止公安机关对其妻薄谷开来涉嫌杀人案件的调查。（2）1月29日至2月2日期间，在未按规定报公安部同意的情况下，通过其提议和主持召开中共重庆市委常委会议，决定免去王立军的中共重庆市公安局党委书记、局长职务。（3）2月7日凌晨，薄熙来在其住处纵容薄谷开来参与了对王立军叛逃应对措施的研究，并同意薄谷开来的提议，批准对外发布了王立军因精神和身体问题正接受“休假式治疗”的虚假消息。（4）2月15日，薄熙来要求重庆市公安局对举报薄谷开来涉嫌杀人的警官王鹏飞进行立案侦查；2月17日，经薄熙来提议和批准，取消了时任重庆市渝北区副区长王鹏飞继续作为该职务的候选人的提名。一审法院认定，被告人薄熙来的上述滥用职权行为，是导致“11.15”案件（即薄谷开来涉嫌杀人案）不能依法及时进行查处和王立军叛逃事件发生的重要原因，并造成特别恶劣的社会影响，致使国家和人民利益遭受重大损失，因而其行为依法构成滥用职权罪且属情节特别严重。

被告人薄熙来及其辩护人针对滥用职权罪的指控提出辩解和辩护意见，认为薄熙来的行为不构成滥用职权罪；一审判决结合在案证据证实的上述案件事实给予了充分有力的回应，认为薄熙来构成滥用职权罪是无疑的。笔者充分认可一审判决对此罪的认定和对辩解、辩护意见的回应，认为以事实为依据、以法律为准绳来衡量，薄熙来的行为完全构成了滥用职权罪且属情节特别严重。我国刑法中滥用职权罪的主观要件为故意，其内容为行为人明知自己的行为系滥用职权，会导致公共财产、国家和人民利益遭受重大损失的结果，并希望或放任这种结果的发生的心态。被告人薄熙来的所作所为充分证明他完全具备了滥用职权罪的故意心态。滥用职权罪的客观要件有两项内容：一是行为人实施了滥用职权的行为，被告人薄熙来的上述行为完全超越了其正当职权而是不折不扣的滥用职权的行为。二是行为人滥用职权的行为“致使公共财产、国家和人民利益遭受重大损失”。对此要件，最高人民检察院2005年通过并于2006年7月26日公布施行的《关于渎职侵权犯罪案件立案标准的规定》第1条中有“严重损害国家声誉，或者造成恶劣的社会影响的”应作为滥用职权罪案立案追诉的明确规定；最高人民法院、最高人民检察院2012年通过、公布并于2013年1月9日起施行的《关于办理渎职刑事案件适用法律若干问题的解释（一）》第1条第1款也有把“造成恶劣社会影响的”认定为滥用职权罪法条的“致使公共财产、国家和人民利益遭受重大损失”的规定，其第1条第2款更进一步把滥用职权行为“造成特别恶劣社会影响的”规定为构成滥用职权罪“情节特别严重的”之加重构成。对照被告人薄熙来的滥用职权行为之后果，致使一起性质和后果极为严重的高官亲属故意杀害外国人的案件不能及时依法查处，办案人员受到非法调查乃至立案侦查；地方大员无视中央规定任意任免要职；身居要职的王立军叛逃到外国领事馆而使全世界惊愕；身为杀人嫌犯且无国家工作人员身份的薄谷开来竟然被薄熙来允许参与对王立军叛逃事件的应对处理及利用公权力对自己的罪行予以掩盖。如此闹剧，竟然在作为党和国家领导人暨重庆市一把手的薄熙来的支持和导演下进行，这哪里还有一点点党纪国法的影子？这难道还称不上是造成特别恶劣的社会影响吗？因此，被告人薄熙来的行为完全构成滥用职权罪，而且因“造成特别恶劣社会影响”而属于“情节特别严重”之犯罪情形。

四、关于刑罚裁量

本案在依据罪刑法定原则和犯罪构成规范认定被告人薄熙来的行为构成三种犯罪的基础上，对被告人的刑罚裁量应贯彻我国刑法的两项基本原则：一是刑法典第4条规定的适用刑法人人平等的原则，即对任何人犯罪在适用法律上一律平等，不允许任何人有超越法律的特权。根据此原则，对身为党和国家领导人的薄熙来构成的三种犯罪依法惩处，正是对平等适用刑法、摒弃法外特权的原则与理念的贯彻。二是刑法典第5条规定的罪责刑相适应的原则，即所判刑罚的轻重，应当与犯罪分子所犯罪行和其承担的刑事责任相适应。被告人薄熙来所犯的三种罪行各有其犯罪情况，刑罚裁量应在衡量其犯罪危害之基础上，再考量其主观恶性和人身危险性，并根据这些情况所决定的刑事责任程度，进而裁量适用恰当的刑种刑度。此外，由于薄熙来构成三种犯罪，决定执行的刑罚还要遵循刑法规定的数罪并罚的规则。一审判决对被告人薄熙来所犯罪行的刑罚裁量，充分贯彻和体现了上述刑法原则和规则。

首先，关于受贿罪的量刑。一审法院认定，被告人薄熙来身为国家工作人员，接受唐肖林、徐明请托，利用职务便利为相关单位和个人谋取利益，直接收受唐肖林给予的钱财，明知并认可其家庭成员收受徐明给予的财物，其行为已构成受贿罪，受贿金额为人民币2044万余元。对薄熙来构成的受贿罪应当怎样量刑？根据刑法典第386条规定，对犯受贿罪的，根据受贿所得数额及情节，依照第383条关于贪污罪处刑的规定处罚。结合刑法典第386条和第383条的规定可知，犯受贿罪，受贿数额在10万元以上的，处10年以上有期徒刑或无期徒刑，可以并处没收财产；情节特别严重的，处死刑，并处没收财产。薄熙来受贿数额为2044万余元，一审法院以受贿罪判处其无期徒刑，剥夺政治权利终身，并处没收个人全部财产。判处薄熙来无期徒刑这一刑罚裁量是否妥当，是重是轻？下面予以简析。

一方面，对薄熙来受贿罪判处无期徒刑是否判轻了？一审判决没有认定其所犯受贿罪为“情节特别严重”，若作此认定依法就必须判处死刑（包括死缓）。对于贪污罪、受贿罪的“情节特别严重”，尚未有司法解释予以明确界定，一般认为可以包括：数额特别巨大，远远超出10万元；犯罪集团的首要分子；因犯罪行为造成其他严重后果或者极其恶劣的社会影响，如贪污数额巨大的救灾、救济、优抚、扶贫等特定款物，因受贿为行贿人谋利益而造成国家、社会重大损失等。被告人薄熙来受贿达2044万余元，当属数额特别巨大，由此而认定为“情节特别严重”也似无不可；但受贿罪的处罚规定特别强调要结合受贿数额及情节考虑，不能单纯以受贿所得数额多少决定刑罚的轻重，而本案的受贿除数额特别巨大以外其他情节尚属一般，若认定为“情节特别严重”似为过分强调了数额而未注意其他情节；更为重要的是我国近年来正进行死刑改革，尤其强调对非暴力犯罪（包括受贿罪和贪污罪）要严格限制、努力减少死刑的适用。综合考虑上述情况，一审法院没有认定薄熙来所犯受贿罪属于“情节特别严重”，这样也就避免了适用死刑（包括死缓），这一掌握应该说是妥当的、理性的。

另一方面，根据近年来我国法院对多位因受贿罪被判处无期徒刑或死缓的省部级高官的量刑情况来看，判处死缓者中有多人受贿额为不满2000万元的，而判处无期徒刑者中也有多人受贿额为不满2000万元乃至不满1000万元的。一审判决认定薄熙来受贿的数额高达2044万，虽情节一般，但并无从宽情节，比较而言，判处其无期徒刑显然不能说重了，这一量刑不仅于法有据，而且考虑了案件的具体情况，在一定程度上作了从宽掌握，因而是合法合理的。

其次，关于贪污罪的量刑。一审法院认定薄熙来身为国家工作人员，利用职务便利，伙同他人侵吞公款，其行为已构成贪污罪，贪污数额为人民币500万元。依据刑法典第383条第1款关于贪污罪处罚的规定，个人贪污数额在10万元以上的，处10年以上有期徒刑或者无期徒刑，可以并处没收财产；情节特别严重的，处死刑，并处没收财产。一审法院按贪污罪判处薄熙来有期徒刑15年，并处没收个人财产人民币100万元。这一量刑是否妥当？一审判决没有认定其贪污罪属于“情节特别严重”，因而排除了死刑（包括死缓）的适用；一审判决在其犯罪数额所对应的10年以上有期徒刑或者无期徒刑的量刑幅度中，没有选择无期徒刑，而是选择了15年有期徒刑。应该说，一审判决对薄熙来所犯贪污500万元罪行的量刑，也是合法合理、显然不重的，乃至是作了适当的从轻考虑的。

再次，关于滥用职权罪的量刑。一审判决认定，薄熙来作为国家机关工作人员，滥用职权，致使国家和人民利益遭受重大损失，其行为已构成滥用职权罪，且属情节特别严重。依据刑法典第397条第1款的规定，构成滥用职权罪，情节特别严重的，处3年以上7年以下有期徒刑。根据薄熙来所犯滥用职权罪的危害程度及其对应的法定刑之规定，一审法院依法从严判处其有期徒刑7年，这也是合法合理的。

最后，关于数罪并罚。由于被告人薄熙来所犯之罪均被依法判处刑罚，因而应当依法适用数罪并罚的规则。被告人薄熙来所犯三罪判处的主刑分别为无期徒刑、15年有期徒刑和7年有期徒刑，按照刑法典第69条的规定和相关理论与实践，判决宣告的数罪之主刑中无期徒刑和有期徒刑并存的，采用吸收原则决定执行的刑罚，即应决定执行一个无期徒刑，低于无期徒刑的其他主刑亦不再执行。因此，一审判决决定对薄熙来执行无期徒刑，剥夺政治权利终身，并处没收其个人全部财产。

综上所述，薄熙来案件的一审审理在严格遵循刑事诉讼程序和彰显程序正当的基础上，又作出了定罪正确、量刑适当、于法有据、于情有理的一审判决，从而实现了案件审判的实体正义，使本案审判成为贯彻现代刑事法治精神、兼具程序正当与实体正义的典范。认真总结和深入研究本案的审判经验并予以弘扬，对于促进我国刑事法治当颇有助益。

作者：赵秉志

来源：法律教育网

The corruption case of Bo Xilai, which has attracted worldwide attention, was heard in public from August 22 to 26, 2013, nearly a month later. On September 22, 2013, the Intermediate people's court of Jinan City held a public hearing to announce the first instance verdict, marking the end of the first instance of this case. Regarding this case, which has significant social impact and has received widespread attention, the relevant handling authorities strictly investigate and deal with it in accordance with the law, especially the open trial of the first instance court, which strictly follows the provisions of the Criminal Procedure Law and Criminal Law. It has become a prominent highlight in terms of open trial, effective protection of the defendant's litigation rights, and the appearance of key witnesses as witnesses in court, making the first instance of this case a major and sensitive case that follows criminal procedure, openness A model of fair trial, which promotes the spirit of the rule of law, demonstrates anti-corruption determination, implements equal justice, and promotes legal education with multiple legal significance, has also been fully recognized. On the basis of the great success of the trial, the judgment of the first instance came out with the features of clear facts, sufficient evidence, thorough reasoning, correct and appropriate application of the law. In particular, the second half of the judgment summarized 20 questions for the defense and defense opinions of the defendant Bo Xilai and his defenders, and made legal and reasonable judgments one by one based on the facts found in the case and the evidence verified by the court review, Thus, the legal basis of this case is solid, and it will inevitably enhance the sense of social identity. Among these 20 issues, most are issues related to evidence and criminal procedure in the Criminal Procedure Law, while some are issues related to conviction and sentencing in the Criminal Law. This article aims to briefly analyze the criminal law aspects of conviction and sentencing in the first instance trial and judgment of this case.

1、 On the Determination of the Crime of Bribery

The crime of bribery is a typical corruption crime in the nature of power and money transactions. It refers to the behavior of state officials taking advantage of their position to extort property from others, or illegally accepting property from others and seeking benefits for them. The fact that Bo Xilai constituted a crime of accepting bribes in the first instance verdict of this case is that from 1999 to 2012, the defendant Bo Xilai, while serving as Mayor of Dalian Municipal People's Government, Secretary of the CPC Dalian Municipal Committee, Governor of Liaoning Provincial People's Government, and Minister of Commerce, took advantage of his position to seek benefits for Dalian International Corporation and its general managers Tang Xiaolin, Shide Group, and accepted the money given by Tang Xiaolin, knowing and recognizing his wife Bo Gu Kailai His son Bo Guagua received the property from Xu Ming, Chairman of Shide Group, amounting to 20.447 million yuan. Compared with the constitutive requirements and case facts of the crime of bribery, Bo Xilai, the defendant who is a state functionary and holds an important position, has two elements of the non bribery type ordinary bribery crime under the clear understanding and intention of the power and money transaction: on the one hand, he uses his position to help the Dalian International Company in charge of Tang Xiaolin receive the Dalian Office in Shenzhen and Tang Xiaolin apply for the automobile import quota, It helped Shide Group to acquire Dalian Wanda Football Team, build a designated helicopter project, and apply for Shide Petrochemical Project, thus possessing the elements of bribery crime to seek benefits for others by taking advantage of their positions; On the other hand, he directly accepted the money given by Tang Xiaolin, which was equivalent to more than RMB 1.109 million. He knew and recognized that his wife and son received the property given by Xu Ming, which was equivalent to RMB 19.3379 million, thus meeting the requirements for accepting other people's property in the crime of bribery. Regarding the determination of the crime of bribery, based on the trial situation and the determination of the first instance judgment, there are two issues that need to be explored and clarified:

First, how to view Bo Xilai's knowing and accepting Xu Ming's property from his wife and son as a crime of accepting bribes? Among them, there are several points: (1) Is Bo Xilai informed and recognized? The defense of the defendant Bo Xilai and the defense opinion of the defender put forward that Bo Xilai could not be deemed to be aware of Bo Gu Kailai's receipt of Xu Ming's money for the purchase of French villas, while Bo Xilai was unaware of Xu Ming's payment of air tickets and travel expenses for Bo Gu Kailai, Bo Guagua and others, as well as his purchase of electric balance cars and repayment of credit card arrears. The first instance judgment has determined that Bo Xilai knew and recognized his wife and son's acceptance of Xu Ming's property according to a variety of evidence on the record verified in the court trial. (2) Does Bo Xilai have the subjective elements of bribery crime? Between the defendant Bo Xilai and his wife, his son and Xu Ming, for more than ten years from 1999 to 2012, the two parties have formed a generalized, long-term intention contact, that is, a deliberate attitude, that is, Bo Xilai uses his position to seek benefits for Xu Ming's Shide Company, and Xu Ming gives Bo Xilai's wife, son and family financial rewards. Both parties are well aware of the substantial relationship between the two parties in this power and money transaction, which is not only confirmed by the testimony of Bo Gu Kailai and Xu Ming, but also the defendant Bo Xilai has reasonable description and recognition in his self written materials and handwritten confession. Under the general and long-term intention of the power and money transaction, the defendant Bo Xilai's ignorance of the details of his wife's and son's acceptance of Xu Ming's property certainly does not affect his subjective knowledge; Their subsequent knowledge and recognition of specific property is also included in their subjective intention of general power and money transactions before and during the event, and does not affect the determination of the subjective elements of their bribery crime. (3) Does Bo Xilai's failure to accept Xu Ming's property directly not constitute bribery? The answer is no. The objective elements of the crime of bribery include compound behavior. Firstly, the promise to commit or specifically commit the act of using official convenience to seek benefits for the briber must be carried out by state officials; The second is the act of accepting money from a bribe giver based on a promise or specific implementation of the aforementioned behavior. This act of accepting money can be carried out by national personnel themselves or by those who have intention to contact the national personnel. In practice, there are many cases where state officials use their positions to seek benefits for others, and their relatives accept money from others for this reason. Such cases should undoubtedly be recognized as bribery crimes. Therefore, Bo Xilai took advantage of his position to seek benefits for Xu Ming's company. Bo Xilai's wife and son therefore accepted Xu Ming's money. Bo Xilai knew and recognized this, and Bo Xilai certainly constituted a crime of bribery. Such qualitative analysis not only conforms to relevant laws and legal principles, but also is a common practice in China's judicial practice.

Secondly, does "official business" constitute the use of position convenience to seek benefits for others in the crime of bribery? In the transcript of the first trial of Bo Xilai's case, we saw that the defendant Bo Xilai repeatedly argued that his support for Tang Xiaolin Company and Xu Ming Company was "business as usual", and the defender also defended that it was Bo Xilai's act of performing his duties according to law, so he questioned the elements of accusing Bo Xilai of seeking benefits for others as a crime of bribery. The prosecutor countered that even if it was "official", it would not affect the establishment of the crime of bribery. The first instance judgment supported the public prosecution opinion and determined that the defendant constituted the crime of bribery. How should we view this issue? According to the provisions of China's criminal law, criminal law theory, and judicial practice, the essence of bribery is the transaction of power and money. As for the means by which the perpetrator seeks benefits for the petitioner, it can be either legal or illegal. The benefits obtained by the perpetrator for the petitioner can be either legitimate or illegitimate, as long as the perpetrator has committed the act of power and money transaction, whether it is "corruption and not violating the law" or "corruption and not violating the law", Neither of them affects the establishment of the crime of bribery. Of course, the two different situations of "corruption and lawlessness" and "corruption and lawlessness" have different impacts on the degree of harm based on the establishment of the crime of bribery. Therefore, whether Bo Xilai violated his duty to seek benefits for Tang Xiaolin and Xu Ming does not affect the establishment of his bribery crime.

2、 On the Determination of Corruption Crimes

Corruption is also a major type of corruption crime. The typical crime of corruption in China's criminal law refers to the act of state officials taking advantage of their position to embezzle, steal, deceive, or illegally occupy public property through other means. The fact that Bo Xilai, the defendant, was found guilty of corruption in the first instance verdict of this case is that Bo Xilai was responsible for the transformation of the secret related places of the superior units undertaken by the Dalian Municipal Government when he was the Secretary of the CPC Dalian Municipal Committee in 2000; After the completion of the project in 2002, upon the proposal of Wang Zhenggang, the director of Dalian Urban Rural Planning and Land Bureau who specifically undertook the project, Bo Xilai, then the governor of Liaoning Provincial People's Government, agreed and instructed Wang Zhenggang and his wife Bo Gu Kailai, and then Bo Gu Kailai discussed and arranged with Wang Zhenggang to transfer the project fund of 5 million yuan allocated by the superior unit to the Dalian Municipal People's Government to Zhao Dongping, the director of Beijing Andao Law Firm designated by Bo Gu Kailai, Bo Gu Kailai asked Zhao to hold the money for him. On this basis, the court of first instance found that Bo Xilai, as a state functionary, used his position to embezzle 5 million yuan with others, and his act constituted a crime of corruption. The defendant Bo Xilai and his defender's main defense and defense opinions against the allegations of corruption are as follows: First, when the alleged corruption occurred, Bo Xilai was the governor of Liaoning Provincial Government and could not directly decide and control the financial affairs of Dalian City, so Bo Xilai did not have the job facilities necessary to constitute a corruption crime; Secondly, Bo Xilai did not have the subjective intention to embezzle public funds, and objectively he did not commit embezzlement, so he did not constitute a crime of corruption. So, how should we view these two issues?

First of all, whether Bo Xilai has any position convenience in this corruption? The first instance verdict found that Bo Xilai had the advantage of his position, and put forward two reasons: first, as the governor of the People's Government of Liaoning Province, Bo Xilai's authority covered Dalian City under the jurisdiction of Liaoning Province; Second, as the original person in charge of the project involved, Bo Xilai was still responsible for the continuation and management of the project at that time, with the convenience of managing and controlling the funds involved. The two reasons of the first instance court are consistent with the facts of the case and supported by sufficient and conclusive evidence, which is legal and reasonable, and therefore their conclusion is also valid. What's more, the defendant Bo Xilai actually exercised the power to dispose of this sum of money. At the same time, we should also see that Wang Zhenggang, as the specific person in charge of the project, certainly has the irrefutable authority to manage the project funds. To say the least, even though Bo Xilai does not have the job convenience to manage and control the funds at all, he, together with Wang Zhenggang and with the help of Wang Zhenggang, illegally possessed the funds by his wife, which certainly constitutes a crime of corruption, However, in this situation, he is no longer taking advantage of his position, but rather taking advantage of Wang Zhenggang's position.

Secondly, whether Bo Xilai has the subjective and objective elements of corruption crime? The subjective element of the crime of corruption is that the perpetrator has the intentional mentality and criminal purpose of illegally occupying public property by taking advantage of their position, while the objective element is that the perpetrator has committed the act of illegally occupying public property by taking advantage of their position. The case trial found that the defendant Bo Xilai, as a national staff member and responsible for managing the project, agreed and instructed Wang Zhenggang and his wife Bo Gu Kailai to discuss and deal with the project fund of 5 million yuan under the proposal of Wang Zhenggang, the specific person in charge, to transfer the fund to Bo Gu Kailai. In fact, Wang Zhenggang and Bo Gu Kailai also dealt with it according to Bo Xilai's intention, Eventually, this sum was controlled and occupied by Bo Gu Kailai. Here, Bo Xilai's consent and encouragement to Wang Zhenggang and Bo Gu Kailai are his behavior of illegally occupying the money by taking advantage of his position to cooperate with Wang Zhenggang and Bo Gu Kailai, which is completely in line with the objective behavior characteristics of corruption crime; At the same time, through this act of consent and encouragement, the defendant Bo Xilai's subjective intention and purpose of illegally occupying the money is also clear, and the defendant actually realized the subjective intention and criminal purpose of the crime of corruption. The defendant Bo Xilai argued that he agreed with Wang Zhenggang to go to Bo Gu Kailai for discussion only because the clause was not easy to deal with, and he wanted Bo Gu Kailai to help solve it properly, rather than his family's illegal possession. As judged by the first instance judgment, this defense is not supported by relevant evidence and is completely unreasonable. Try to measure it with common sense: this sum of money is no longer easy to deal with. If Bo Xilai does not want to take it for himself, he can instruct Wang Zhenggang to hand it over to the Dalian Municipal People's Government and briefly explain it. Why should Wang Zhenggang go to Bo Gu Kailai, who is not a staff member of the Dalian Municipal Government but also has nothing to do with this sum of money, and who is his wife, to discuss how to deal with it? Bo Xilai asked Wang Zhenggang and Bo Gu Kailai to discuss how to safely let Bo Gu Kailai, also known as Bo Xilai's family, illegally possess the money. The fact also evolves according to this logic and reason. After the discussion and arrangement between Wang Zhenggang and Bo Gu Kailai, the money went through several stages of concealment into the account designated by Bo Gu Kailai and was under his control and possession. Bo Gu Kailai said in his testimony that she had told Bo Xilai about the money, and Bo Xilai had no objection or demand for recovery, so the money became the property of Bo Xilai's family, It was not until this incident that they were investigated and dealt with. The above facts and reasons also fully demonstrate that Bo Xilai's argument that he has no purpose of illegally occupying the public funds is weak and completely untenable.

3、 On the Determination of the Crime of Abusing Power

The crime of abuse of power is a crime of dereliction of duty committed intentionally exceeding one's authority. It refers to the behavior of government officials who exceed their authority, illegally decide or handle matters that they do not have the authority to decide or handle, or violate regulations in handling public affairs, resulting in significant losses to public property, the interests of the country and the people. According to the verdict of the first instance of this case, during the period from January 28 to February 2012, the defendant Bo Xilai, as a member of the Political Bureau of the CPC Central Committee and secretary of the CPC Chongqing Municipal Committee, committed a series of acts of abuse of power in violation of regulations after the relevant personnel informed him that Bo Gu Kailai was suspected of intentional homicide, and before and after Wang Lijun defected to the U.S. Consulate General in Chengdu: (1) On the evening of January 28, Wang Lijun, the municipal public security director, told Bo Xilai that Bo Gu Kailai was suspected of killing people; On the morning of January 29, Bo Xilai called Wang Lijun, Guo Weiguo (Deputy Director of the Municipal Public Security Bureau), and Wu Wenkang (Deputy Secretary General of the Municipal Party Committee and Director of the General Office of the Municipal Party Committee) to have a talk, accusing Wang Lijun of framing Bo Gu Kailai and beating and scolding Wang Lijun; On the evening of January 29, according to Bo Gu Kailai's request, Bo Xilai arranged Wu Wenkang to investigate Wang Zhi and Wang Pengfei, the public security investigators who exposed Bo Gu Kailai's suspected murder. Through the above actions, the public security organ was prevented from investigating the murder case of his wife Bo Gu Kailai. (2) During the period from January 29 to February 2, without the approval of the Ministry of Public Security as required, it was decided to remove Wang Lijun from the post of Secretary of the Party Committee and Director of the Chongqing Public Security Bureau of the Communist Party of China through his proposal and hosting the meeting of the Standing Committee of the Chongqing Municipal Committee of the Communist Party of China. (3) In the early morning of February 7, Bo Xilai connived at Bo Gu Kailai's residence to participate in the study of Wang Lijun's countermeasures against defection, agreed with Bo Gu Kailai's proposal, and approved the release of the false news that Wang Lijun was receiving "leave treatment" due to mental and physical problems. (4) On February 15, Bo Xilai asked the Chongqing Public Security Bureau to file a case against Wang Pengfei, a police officer who reported that Bo Gu Kailai was suspected of murder; On February 17, upon the proposal and approval of Bo Xilai, Wang Pengfei, then Deputy District Chief of Yubei District of Chongqing, was cancelled as a candidate for the post. The court of first instance found that the above-mentioned abuse of power by the defendant Bo Xilai was an important reason for the failure to investigate and deal with the "11.15" case (that is, Bo Gu Kailai was suspected of murder) in a timely manner according to law and the occurrence of Wang Lijun's defection, which caused particularly bad social impact and caused heavy losses to the interests of the country and the people. Therefore, his behavior constituted a crime of abuse of power according to law and the circumstances were particularly serious.

The defendant Bo Xilai and his defender put forward defense and defense opinions against the accusation of abuse of power, believing that Bo Xilai's behavior does not constitute the crime of abuse of power; The first instance verdict gave a full and powerful response to the above case facts confirmed by the evidence on the case, and it is no doubt that Bo Xilai constitutes a crime of abuse of power. The author fully agrees with the determination of this crime and the response to the plea and defense opinions in the first instance verdict, and believes that Bo Xilai's behavior completely constitutes the crime of abuse of power and is particularly serious when measured based on facts and laws. The subjective element of the crime of abuse of power in China's criminal law is intention, which refers to the mentality of the perpetrator who knows that their behavior is the result of abuse of power and will cause significant losses to public property, the interests of the country and the people, and hopes or allows this result to occur. What the defendant Bo Xilai did fully proves that he has a deliberate attitude towards the crime of abuse of power. The objective elements of the crime of abuse of power have two contents: one is that the perpetrator has committed the act of abuse of power, and the above-mentioned act of the defendant Bo Xilai has completely exceeded his legitimate power and is an act of absolute abuse of power. The second is that the perpetrator's abuse of power "causes significant losses to public property, the interests of the country and the people". Regarding this requirement, Article 1 of the "Provisions on the Standards for Filing Cases of dereliction of Duty and Tort Crimes" passed by the Supreme People's Procuratorate in 2005 and promulgated and implemented on July 26, 2006 stipulates that "serious damage to national reputation or causing adverse social impact" should be regarded as a clear provision for prosecuting cases of abuse of power crimes; The Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of dereliction of Duty (1), passed and promulgated by the Supreme People's Court and the Supreme People's Procuratorate in 2012 and implemented on January 9, 2013, also stipulates in Article 1, Paragraph 1, that "causing adverse social impact" shall be deemed as the crime of abuse of power, and that "causing significant losses to public property, the interests of the state and the people" shall be deemed as the provision of the Law, Article 1, paragraph 2, further defines the act of abuse of power as an aggravation of the crime of abuse of power if the circumstances are particularly serious. Compared with the consequences of the defendant Bo Xilai's abuse of power, a case of intentional killing of foreigners by relatives of senior officials with extremely serious nature and consequences could not be investigated and dealt with in a timely manner according to law, and the investigators were illegally investigated and even put on file for investigation; Local officials ignore central regulations and arbitrarily appoint or remove important positions; Wang Lijun, who was in an important position, defected to a foreign consulate and shocked the whole world; Bo Gu Kailai, who is a murder suspect and has no status as a state functionary, was allowed by Bo Xilai to participate in the response to Wang Lijun's defection and use public power to cover up his crimes. Such farce was actually carried out under the support and direction of Bo Xilai, the leader of the Party and the state and the top leader of Chongqing. Where is there any trace of party discipline and national law? Can't this still be considered as causing a particularly negative social impact? Therefore, the defendant Bo Xilai's behavior completely constitutes the crime of abuse of power, and it belongs to the criminal situation of "particularly serious circumstances" because of "causing particularly bad social impact".

4、 On Penalty Discretion

In this case, on the basis of the Nulla poena sine lege and the crime constitution norms, the defendant Bo Xilai's behavior constitutes three kinds of crimes. The sentencing of the defendant should implement the two basic principles of China's criminal law: first, the principle of equality in the application of the criminal law stipulated in Article 4 of the Criminal Code, that is, the application of the law to anyone who commits a crime is equal, and no one is allowed to have the privilege of transcending the law. According to this principle, punishing Bo Xilai, the leader of the Party and the state, for three crimes according to law is just the implementation of the principle and idea of equal application of criminal law and rejection of extralegal privileges. The second principle is that Article 5 of the Criminal Code stipulates the principle of compatibility between criminal responsibility and punishment, that is, the severity of the punishment imposed should be consistent with the criminal acts committed by the criminals and the criminal responsibilities they bear. The three crimes committed by the defendant Bo Xilai each have their own criminal circumstances. The penalty discretion should consider their subjective malignancy and personal danger on the basis of measuring the harm of their crimes, and according to the degree of criminal responsibility determined by these circumstances, then apply appropriate punishment. In addition, since Bo Xilai constituted three kinds of crimes, the punishment decided to execute should also follow the rule of combined punishment for several crimes stipulated in the Criminal Law. The sentencing of the defendant Bo Xilai's crime in the first instance judgment fully implements and reflects the above criminal principles and rules.

Firstly, regarding the sentencing of bribery. The court of first instance found that the defendant Bo Xilai, as a state functionary, accepted the request of Tang Xiaolin and Xu Ming, took advantage of his position to seek benefits for relevant units and individuals, directly accepted the money given by Tang Xiaolin, and knowingly and recognized his family members to accept the money given by Xu Ming. His behavior has constituted a crime of bribery, with the amount of bribery being more than 20.44 million yuan. How should Bo Xilai's bribery crime be punished? According to Article 386 of the Criminal Code, those who commit the crime of bribery shall be punished in accordance with the provisions of Article 383 on the punishment of corruption based on the amount and circumstances of the bribery proceeds. Based on the provisions of Articles 386 and 383 of the Criminal Code, it can be concluded that those who commit the crime of bribery and accept bribes exceeding 100000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and may also be sentenced to confiscation of property; If the circumstances are particularly serious, the death penalty shall be imposed and property shall be confiscated. Bo Xilai took bribes amounting to more than 20.44 million yuan. The court of first instance sentenced him to life imprisonment for bribery, Civil death for life, and confiscated all his personal property. Is Bo Xilai's sentence of life imprisonment appropriate? Below is a brief analysis.

On the one hand, is life imprisonment for Bo Xilai's bribery a light sentence? The first instance judgment did not determine that his bribery crime was "particularly serious", and if such a determination is made, he must be sentenced to death (including a reprieve) in accordance with the law. The "serious circumstances" of corruption and bribery crimes have not yet been clearly defined by judicial interpretation. It is generally believed that they can include: the amount is particularly large, far exceeding 100000 yuan; The ringleaders of criminal groups; Other serious consequences or extremely negative social impacts caused by criminal acts, such as embezzlement of large amounts of specific funds and materials such as disaster relief, relief, preferential treatment, and poverty alleviation, and significant losses to the state and society caused by bribery for the benefit of the briber. The defendant Bo Xilai took bribes amounting to more than 20.44 million yuan, which should be a huge amount, so it seems that "the circumstances are particularly serious" is inevitable; However, the punishment provisions for the crime of bribery emphasize the consideration of the amount and circumstances of the bribery, and the severity of the punishment cannot be solely determined by the amount of the bribery proceeds. In this case, except for the extremely large amount of bribery, other circumstances are still ordinary. If it is determined that the "circumstances are particularly serious", it may be an overemphasis on the amount without paying attention to other circumstances; More importantly, in recent years, China has been carrying out death penalty reforms, emphasizing strict restrictions and efforts to reduce the application of the death penalty for non violent crimes (including bribery and corruption). Considering the above circumstances, the court of first instance did not consider the bribery crime committed by Bo Xilai to be "particularly serious", thus avoiding the application of the death penalty (including the death sentence with a reprieve), which should be said to be appropriate and rational.

On the other hand, according to the sentencing of several provincial and ministerial level officials who have been sentenced to life imprisonment or death sentence with a reprieve for bribery in recent years, many of those sentenced to death sentence with a reprieve have accepted bribes of less than 20 million yuan, while many of those sentenced to life imprisonment have accepted bribes of less than 20 million yuan or even less than 10 million yuan. The first instance verdict found that Bo Xilai's bribery amount was up to 20.44 million yuan. Although the circumstances were ordinary, there was no leniency. Comparatively speaking, the sentence of life imprisonment could not be said to be heavy. This sentencing was not only based on the law, but also considered the specific circumstances of the case, and to a certain extent, it was lenient, so it was legal and reasonable.

Secondly, regarding the sentencing of corruption crimes. The court of first instance found that Bo Xilai, as a state functionary, took advantage of his position to embezzle public funds with others, and his act constituted a crime of corruption, amounting to 5 million yuan. According to the provisions of Article 383 (1) of the Criminal Code on the punishment of corruption, if an individual embezzles more than 100000 yuan, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and may also be sentenced to confiscation of property; If the circumstances are particularly serious, the death penalty shall be imposed and property shall be confiscated. The court of first instance sentenced Bo Xilai to 15 years' imprisonment for the crime of corruption and confiscated personal property of 1 million yuan. Is this sentencing appropriate? The first instance ruling did not determine that his corruption crime belonged to "particularly serious circumstances", thus excluding the application of the death penalty (including a reprieve); The first instance judgment did not choose life imprisonment, but instead chose 15 years of imprisonment, based on the sentencing range of imprisonment for more than 10 years or life imprisonment corresponding to the amount of crime committed. It should be said that the sentencing of Bo Xilai's crime of embezzlement of 5 million yuan in the first instance judgment is also legitimate and reasonable, obviously not heavy, and even made appropriate light consideration.

Once again, regarding the sentencing of the crime of abuse of power. The first instance verdict found that Bo Xilai, as a staff member of the state organs, abused his power, causing heavy losses to the interests of the state and the people, and his behavior constituted a crime of abuse of power, which was particularly serious. According to Article 397 (1) of the Criminal Code, if the case constitutes the crime of abuse of power and the circumstances are particularly serious, it shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 7 years. According to the degree of harm of the crime of abuse of power committed by Bo Xilai and its corresponding statutory punishment, the court of first instance sentenced him severely to 7 years' imprisonment, which is also legal and reasonable.

Finally, regarding joint punishment for multiple crimes. Since all the crimes committed by the defendant Bo Xilai were punished according to law, the rule of combined punishment for several crimes should be applied according to law. The main sentences of the three crimes committed by the defendant Bo Xilai are life imprisonment, 15 years' imprisonment and 7 years' imprisonment. According to the provisions of Article 69 of the Criminal Code and relevant theories and practices, if life imprisonment and fixed-term imprisonment coexist among the main sentences of several crimes announced in the judgment, the penalty decided to be executed by absorbing the principle shall be adopted, that is, a life imprisonment shall be decided to be executed, and other main sentences lower than life imprisonment shall not be executed. Therefore, the first instance verdict decided to impose life imprisonment on Bo Xilai, Civil death for life, and confiscate all his personal property.

To sum up, the trial of Bo Xilai's case in the first instance, on the basis of strictly following the criminal procedure and highlighting the due process, also made the first instance judgment that was correct in conviction, appropriate in sentencing, based on the law, and reasonable in feeling, thus realizing the substantive justice of the case trial, making the trial of this case a model of implementing the spirit of modern criminal rule of law, with both procedural justice and substantive justice. Seriously summarizing and conducting in-depth research on the trial experience of this case and promoting it will be helpful for promoting the rule of law in criminal law in China.

Author: Zhao Bingzhi

Source: Legal Education Network