Chapter 36 Chapter 34: The Gray Area of ​​Corrupt Officials' Merit

Human individuality manifests as freedom, and human sociality manifests as order. The essence of the rule of law is the dynamic balance between freedom and order. If the guiding and evaluation function of the "meritorious service" legal norm is improperly used by fallen corrupt officials, it will violate the original intention of the "meritorious service lenient" system. On September 12, 2010, the Ministry of Public Security confirmed that Xie Yalong, the former vice chairman of the Chinese Football Association, Li Dongsheng, the former director of the referee committee of the Chinese Football Association, and Wei Shaohui, the former team leader of the national football team, were investigated by the police.According to media reports, an important clue to the above-mentioned three people's involvement in the case came from the voluntary confession of Nan Yong, Yang Yimin and others who had previously been put on file.

A legal person pointed out to the reporter that if verified, the reports of Nan Yong, Yang Yimin and others can be regarded as major meritorious service, which will help reduce their own punishment. The establishment of the meritorious service system is intended to encourage criminals to reform themselves and improve the efficiency of judicial organs in handling cases.At the same time, it is also to disintegrate the criminal forces and reduce the harm caused by crime to the society.In past judicial practice, it has indeed played a lot of roles. However, in recent years, some "fallen" corrupt officials have also tried their best to use various methods to "make meritorious service" in order to reduce punishment. As a result, there have been alienated meritorious service cases such as aiding meritorious service, colluding with criminals, false meritorious service, and buying and selling meritorious service, which seriously misled the trial results.

"The recognition of corrupt officials' meritorious service should be strictly screened." Hong Daode, a professor of criminal procedure law at China University of Political Science and Law, said in an interview with reporters that if the guiding and evaluation functions of the "meritorious service" legal norms are improperly used by "fallen" corrupt officials, they will be It violates the original intention of the system of "leniency for meritorious service". According to the provisions of Article 68 of my country's "Criminal Law", criminals who expose other people's criminal acts, verify the truth, or provide important clues, thereby being able to solve other cases and other meritorious performances, may be given a lighter or mitigated punishment; Yes, the penalty may be mitigated or exempted.Whoever surrenders himself after committing a crime and performs major meritorious service shall be given a reduced or exempted punishment.

In reality, it is often seen that corrupt officials are given a reduced punishment due to "performance of meritorious service" or "performance of major meritorious service".However, since the specific meritorious service content is rarely known to the outside world, it is particularly mysterious. On July 15, 2009, the Beijing No. 2 Intermediate People's Court sentenced Chen Tonghai, the former chairman of Sinopec, to a suspended death sentence in the first instance.It is said that Chen Tonghai can avoid death by accepting nearly 200 million yuan in bribes. In addition to returning all the stolen money, he also has "meritorious service performance".Subsequently, the relevant departments explained, but only announced the legal provisions applicable to the performance of meritorious service, and did not announce the specific details of meritorious service.

On November 22, 2007, the Beijing No. 1 Intermediate People's Court found Xing Zhiguo, the former deputy head of Haidian District, guilty of accepting bribes and concealing overseas deposits, and sentenced Xing Zhiguo to 12 years in prison at the first instance.The court found that during his detention, Xing Zhiguo had reported and exposed another major bribery case, which was a major meritorious service, and he was given a lighter punishment accordingly.However, the verdict did not clearly record which crimes he reported. Earlier, on July 28, 2005, Ma De, the former party secretary of Suihua City, Heilongjiang Province, was sentenced by the Beijing No. 2 Intermediate People's Court in the bribery case. Ma De was sentenced to death with a reprieve.The court found that Ma De's report revealed clues about other people's suspected bribery, which had been verified and performed meritorious service.The details of these crimes are still unknown to the outside world.

Judging from the publicly disclosed situation, there are not a few corrupt officials whose punishments have been mitigated due to "performance of meritorious service" or "performance of major meritorious service".For example, Cao Wenzhuang, former director of the Drug Registration Department of the State Food and Drug Administration, Xu Man, former director of the Management and Inspection Department of the State Administration of Foreign Exchange, Shi Faliang, former director of the Communications Department of Henan Province, Du Chongyan, former governor of Xiangxi Autonomous Prefecture of Hunan Province, and former party secretary of Wenchang City, Hainan Province Xie Mingzhong, wait.

In this regard, Hong Daode believes that the establishment of the meritorious service system is intended to mobilize the power of the entire society, including the power of criminal suspects, to help the judiciary detect criminal cases that have not been grasped in a timely manner, reduce judicial costs to a certain extent, and increase the deterrence of the criminal law. force. "Because the specific situation is not clearly stated in the verdict, the transparency is not high, and effective supervision is lacking. A good system may also go to the opposite side because of the room for black-box operations." Hong Daode said.

According to a number of people in the judicial circle, the recognition of corrupt officials’ meritorious service is not strict in some places. Ask about the source of criminal clues. Many corrupt officials therefore regard false meritorious service as "life-saving straw". Gao Yuchuan, the former director of the Forestry Bureau of Jingbian County, Shaanxi Province, embezzled 80,000 yuan, and the Jingbian County Public Security Bureau provided him with a "major meritorious service performance" certificate. In September 2007, the Hengshan County Court exempted Gao Yuchuan from criminal punishment in the first instance based on this judgment.It was later found out that Gao Yuchuan's "significant meritorious service performance" proved to be false materials, and the 15 law enforcement officials involved in the case were also given various degrees of party and political discipline sanctions.

Some corrupt officials also bribed the investigators to provide clues to their crimes, "True clues, fake meritorious service." In May 2008, the Songyang County Procuratorate of Zhejiang Province filed a corruption case against Xie Shouliang, deputy director of the General Affairs Office of Lishui Secondary Vocational School, according to the law.Considering that Xie Shouliang surrendered himself and had a good attitude towards pleading guilty, the procuratorate decided to release him on bail pending trial.During the period, Fang Jianjun, the former director of the Xiping Town Police Station in Songyang County, who was in charge of supervising Xie Shouliang through private transactions, provided clues to Xie Shouliang's meritorious deeds and issued a statement on the circumstances of his reporting and meritorious deeds.Based on this, the court found that Xie Shouliang had made meritorious service, and the punishment was reduced according to law, and sentenced Xie Shouliang to three years in prison, suspended for three years.After the incident, Fang Jianjun was sentenced to one year and three months in prison.

In recent years, there have been endless cases of corrupt officials making false meritorious service. Some were discovered during the fraudulent process, and some were exposed after the fact. However, they were finally revealed by chance. It is understood that Article 68 of my country's Criminal Law on meritorious service does not distinguish criminals based on their specific identities.In fact, compared with other common criminals, corrupt officials have more "opportunities to make meritorious service" due to their rich "resources". In response to this situation, Li Chengyan, a professor at the School of Government of Peking University, believes that judging from the current situation, many of the "opportunities" for corrupt officials to make meritorious service are obtained through illegal channels. Injustice appears in actual operation.

But the fact is that in recent years, on the one hand, corruption has spread day by day, and the amount of corruption and bribery has been continuously refreshed, and even "corrupt officials with a hundred million yuan" have appeared frequently.But on the other hand, many corrupt officials who have accepted huge amounts of bribes often give people the impression that they can be punished lightly because of their meritorious performances such as "reporting others". According to insiders, it is not possible for a corrupt official to achieve the goal of mitigating punishment through fake meritorious service. This requires the close cooperation of many people, and the entire operation process is extremely hidden. According to Hong Daode, corrupt officials provide clues for their meritorious service, but they themselves do not have many clues, but most of them are obtained through inquiries from relatives and friends or other people outside the case through peripheral activities.Generally speaking, there are four steps for corrupt officials to make false meritorious deeds: one is to obtain or purchase criminal clues through relationships; The seal of the competent authority will be recognized; the fourth is that the court will give the corrupt official a light sentence based on the meritorious service certificate. "Obtaining information is very important, which determines the degree to which corrupt officials are given light sentences." A prosecutor in Beijing who did not want to be named told reporters, "In terms of buying and selling meritorious service, a fairly secret market has formed in society, that is, one party will control The criminal facts or criminal clues were sold to corrupt officials.” It is understood that the issue of corrupt officials making false meritorious service has attracted the attention of high-level judicial officials. On March 12, 2009, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Opinions on Several Issues Concerning the Sentencing Circumstances of Self-surrender and Meritorious Service" (hereinafter referred to as "Opinions"), which clarified the sentencing circumstances of voluntary surrender and meritorious service. The conditions for its establishment, strict procedures for its identification, and standardizing its role in sentencing. The "Opinions" pointed out: "Conducting meritorious deeds must be carried out by the criminal himself. In order for the criminal to be dealt with lightly, the relatives and friends of the criminal directly report the criminal behavior of others to the relevant organs, provide important clues to solve other cases, or assist the judicial organs The arrest of other criminal suspects should not be considered as a performance of meritorious service by criminals." In addition, the "Opinions" also put forward corresponding handling opinions on the identification procedure of meritorious service, the source requirements of the materials used to perform meritorious service, the understanding of penalties of life imprisonment or above in major meritorious service, and the application principles of meritorious circumstances. In Hong Daode's view, the "Opinions" have clearly blocked the path of corrupt officials making false meritorious service in the past, but after the "Opinions" was issued, incidents of corrupt officials making false meritorious service still occur from time to time in various places. "There is a problem in the law enforcement process. Especially in terms of whether the sources of criminal clues provided by corrupt officials are legal, some places are not strictly censored. Therefore, although the clues reported by corrupt officials are true, the source is illegal." Hong Daode believes that although the "Opinions" have clear requirements and restrictions on the conditions for corrupt officials to perform meritorious service, due to the lack of effective restraint and supervision mechanisms among the public security, procuratorates, and courts, and the "breakpoints" in each provision, and The lack of scientific connection provides an opportunity for corrupt officials to take advantage of. Because of this, in the absence of high transparency and lack of effective supervision by the judiciary, it is inevitable for corrupt officials to make false meritorious service. In some places, some public security organs even directly send materials of corrupt officials' meritorious service to the judicial organs. Prosecutors discover and see through It is not easy for corrupt officials to make false contributions. According to many interviewed professionals, the meritorious service system conforms to the principle of combining punishment and education, objectively improves the efficiency of case detection, and is generally a positive system. However, for a good system to play its role, it should be more supervised in the implementation process.Chen Jie, a lawyer from Beijing Zhongguang Law Firm, told reporters that the identification of corrupt officials' meritorious service should be strictly based on the "Criminal Procedure Law" and the "Opinions" of the two high-level officials. , public prosecution, and trial procedures should be carefully reviewed, and the relevant evidence for determining meritorious service should be included in the case file. Chen Jie believes that the judicial interpretation implemented in 2009 needs to pay attention to two points in the specific implementation: first, it emphasizes that meritorious service should be the defendant's own behavior, so as to prevent others from reporting clues and criminal clues already grasped by the investigation agency from being "smartly" misappropriated. The meritorious behavior of the defendant; secondly, it emphasizes that the relevant evidence that meets the elements of meritorious service should be recorded in the case and undergo strict examination by the public prosecution and judicial organs. In addition, in my country's current criminal procedure system, the sentencing procedure is relatively vague.Chen Jie suggested that through the reform of sentencing norms, public identification of meritorious service should be made at the trial and sentencing stage, so that the discovery of false meritorious service is no longer accidental. Li Chengyan believes that the performance of corrupt officials' meritorious service should be as transparent as possible. In particular, it is necessary to formulate evidence standards to standardize materials for proving meritorious service, so as to change the situation that only a single proof material is used to determine meritorious service.At the same time, there should be corresponding detailed regulations on how to review and judge criminal clues and materials during the stages of investigation, prosecution, and trial, so that suspicious points can be promptly investigated to block the doorway for exonerating corrupt officials. "In the procuratorate's indictment and the court's judgment, the corrupt officials' meritorious performance" should be described as accurately and as detailed as possible, and rigorous factual evidence should be submitted like criminal evidence." Ma Ma, deputy director of the Center for Legal Research, Shanghai University of Finance and Economics Dr. Guoan said in an interview with reporters that if the "meritorious performance" of some corrupt officials is really not suitable for detailed description in the judgment, it should also be made public at a certain level, or a specific time should be set for the release of relevant details to the public, so as to ensure that the public informed. Ma Guoan said that in order to prevent corrupt officials from making false meritorious service, in addition to continuously standardizing meritorious service standards, it is more important to strengthen law enforcement supervision over the public security, procuratorates, courts and other entities involved in criminal proceedings so that they will not be involved in any criminal activities. One link is to make meritorious deeds and falsify for corrupt officials, and to help the evildoers. Hong Daode said that some cases involving national security, or using these clues to further solve the case, should not be disclosed to the public, "especially at the level of the judiciary, it is necessary to be transparent, so as to achieve effective mutual supervision and restraint." However, the interviewed experts emphasized that anti-corruption should not fall into the misunderstanding of relying on corrupt officials to "make meritorious service".Only in this way, public officials will be afraid, so that they will not "follow the previous corruption", and the anti-corruption can be advanced in depth.