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最高人民法院印发《八省市法院审判贪污、受贿、走私案件情况座谈会纪要》的通知 Circular of Supreme People's Court Concerning Printing and Distribution of the Forum Summary of the Eight Provinces and Municipalities' Courts Concerning the Situation of the Trial of Cases of Embezzlement, Accepting Bribes, and Smuggling

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颁布日期:19871231  实施日期:19871231  颁布单位:最高人民法院

  The Higher People's Courts of provinces, autonomous regions, and municipalities directly under the Central Government, and the Military Courts of the PLA:

  The Forum Summary of the Courts of the Eight Provinces and Municipalities Directly Under the Central Government Concerning the Situation of the Trial of Cases in terms of Embezzlement, Accepting Bribes, and Smuggling is hereby distributed to you, and please earnestly study and implement it in combination with the actual conditions of your district. At present, while combating serious economic crime activities, you should pay attention to strengthening the investigations and studies into new situations and problems arising from the deepened reform, and summarizing experiences in time to instruct the trial work, so as to serve better for safeguarding the socialist modernization.

  Attachment:

  Forum Summary of the Courts of the Eight Provinces and Municipalities Concerning the Situation of the Trial of Cases of Embezzlement, Accepting Bribes, and Smuggling

  The Forum of the Courts of the Eight Provinces and Municipalities Directly Under the Central Government (Guangdong, Fujian, Zhejiang, Sichuan, Liaoning, Beijing, Tianjin, and Shanghai, etc.) concerning the Situation of the Trial of Cases in terms of Embezzlement, Accepting Bribes, and Smuggling, was held by this Court at Fangshan District, Beijing Municipality, on November 15, 1987. The participants included vice-presidents and chief judges of the Higher Courts of the eight provinces and municipalities, who are in charge of criminal trial work. The forum was presided over by the vice-president, Linzhun. And president Zheng Tianxiang as well as vice-president Ren Jianxin attended parts of the discussion.

  This conference is mainly to have an informal discussion about the new situation and problems arising from the present trial of cases in terms of embezzlement, accepting bribes, and smuggling, and to exchange the experience of trial of economic crime cases. Meanwhile, the Supplementary Provisions on Punishing the Crimes of Embezzlement and Bribery (Draft), and the Supplementary Provisions on Punishing the Crimes of Smuggling (Draft), both of which were deliberated at the 23rd Session of the Standing Committee of the Sixth National People's Congress, have been discussed, and some revising suggestions have been put forward. Therefore, it was regarded as a fruitful conference.

  It is viewed at the conference that, since the Work Conference of the National Courts on the Trial of Major and Serious Cases was held in July, 1986, courts at all levels, as they kept severely combating serious criminal offenders, starting from handling major and serious cases, have tried a batch of economic crime cases, as a result, some criminals destroying the economic seriously have been punished severely according to law, which has played a strong safeguarding role in the advancement of the economic system reform and open policy along the socialist track. Practice has proved that the combating of People's Courts over serious economic criminals is powerful over the past year, and both the quality of the case-handling and the social effect are good.

  I. The conference has made an overall analysis with regard to the situation of the struggle against economic crimes at present.

  1. According to statistics, from January to October this year, the nationwide People's Courts at all levels have accepted 47, 929 economic crime cases, which dropped by 25.7%, compared with the same period of last year's 64,539. Seeing from the situation of the eight provinces and municipalities' acceptance of cases of embezzlement, accepting bribes, and smuggling from January to October this year, embezzlement cases dropped by 39.1% compared with the same period of last year; Cases of accepting bribes dropped by 46.7% compared with the same period of last year; Cases of smuggling rose by 35.2% compared with the same period of last year. Comrades participating in the conference believed that, the main reason for making an overall and deep analysis with regard to the situation under which the amount of the economic crime cases accepted by the Courts dropped this year, has two respects: first, the work of combating economic crimes was carried out severely last year, as a result, a large number of cases of embezzlement and accepting bribes occurring before 1984 and 1985, have been tried. Therefore, it is very natural that the amount of the accepted cases this year is less than that of the last year. Second, the investigation and prosecution work of some institutions didn't keep up with their adjusted tasks, so the amount of the cases accepted by Courts reduced correspondingly. However, in fact, the present situation of economic crimes is very complicated, more serious than the situation reflected by the existing statistics. Economic crimes in localities are still very serious, and quite a few of serious economic criminals haven't been punished yet. Comrades participating in this informal discussion believed that, the present struggle against serious economic crimes of embezzlement, accepting bribes, smuggling etc., remains a very important task.

  2. Although the quantity of embezzlement cases accepted by the Courts of the eight provinces and municipalities reduces this year, major cases are increasing. The number of people who embezzled more than 30,000 yuan increases year by year: 15 people in 1983, 46 people in 1984, 72 people in 1985, 254 people in 1986, 161 people from January to October, 1987. Although compared with the same period of last year, the number drops to some extent this year, the number of people who embezzled more than 50,000 yuan rises by 7.4%, and the number of people who embezzled more than 100,000 yuan rises by 17.4%. This shows that major embezzlement cases are increasing, and the struggle against embezzlement is a serious problem.

  3. Seeing from the situation of the accepted cases this year, the cases of embezzlement and accepting bribes, in which the crimes are committed in 1986 and 1987, account for a considerable proportion. According to the statistics from the five provinces and municipalities—Beijing, Tianjin, Shanghai, Guangdong, Zhejiang (excluding Jiaxing City), from January to October 1987, 1292 embezzlement cases in all are accepted, among which, 646 cases in which crimes are committed before 1985 account for 50%, 445 cases in which crimes are committed in 1986 account for 34.4%, 201 cases in which crimes are committed in 1987 account for 15.6%; From January to October in 1987, 496 cases of accepting bribes in all are accepted, among which, 279 cases in which crimes are committed before 1985 account for 56.3%, 143 cases in which crimes are committed in 1986 account for 28.8%, 74 cases in which crimes are committed in 1987 account for 14.9%. In 21 major cases of economic crimes accepted from January to October this year in Shanghai, 10 cases that took place in 1986 and 1987, account for 47.6%. This shows that, in spite of being severely combated in 1986, the situation of economic crimes remains serious at present, therefore we should not adopt a casual attitude.

  4. Smuggling criminal activities of 3 provinces of Guangdong, Fujian, Zhejiang, which are in the coastal area are very serious. In recent years, the smuggling case accepted by the Courts of the three provinces was 100 in 1985, it was 130 in 1986, and it was 138 from January to October 1987. From the superficial phenomenon, the smuggling case accepted by Courts has increased year by year, but many cases were not filed with the Court in fact. For example, Fujian Province has discovered more than 1600 smuggling cases from January to February 1987, but only 5 of them filed with the Court, accounting for 0.3%; Shanghai has discovered more than 600 smuggling cases from 1986 to October of 1987, however, no prosecution was conducted with the Court.

  In smuggle crimes, the entity smuggling is very conspicuous, the number of which is large. For example, the Customs of Beijing has discovered 4619 smuggling cases altogether from 1983 to the first half year of 1986, 34 of which are the entity smuggling, accounting for 0.7%, but the cases in which the smuggling number is up to 351 million yuan, accounting for 98.7% of the total amount of smuggling cases, 355,390,000 yuan. Among the smuggling cases discovered by Dalian Customs from 1983 to November 1987, all of the 58 cases in which the smuggling number is above 30,000 yuan are entity smuggling. But few of these serious smuggling cases were filed with the Court. This shows that, the problem of substituting the fine for the penalty hasn't been settled in a very good manner.

  5. It is known that the administrations of foreign trade and economic cooperation, bank, building, industry and commerce, tax, etc. in some provinces and municipalities have revealed some economic crime issues, some of which are quite serious.

  II. Five requirements concerning continuing to struggle against economic crimes in the future were put forward at the conference according to the analysis on the present situation of economic crimes as well as new situation and problems.

  1. The longevity and complexity of combating serious economic crimes shall be fully realized. Comrade Xiaoping indicated a long time ago that, how long reform goes on depends on how long combating economic crimes goes on. After the 13th National People's Congress, our task is to accelerate and deepen reform. In the course of reform, we will face a lot of new problems. Some illegal persons will take advantage of reform to seek loopholes of our imperfect systems and administration, in addition, the decadent ideology of the capitalist class will corrode us, therefore new economic crime activities will occur constantly, and the struggle remains fierce. Under such circumstances, the People's Court shall continue to adopt the policy of punishing strictly the criminals who destroy economic seriously in accordance with law and without any relaxation and kindness.

  2. The guiding ideology of the trial of economic criminal cases should be further defined. The Report of the 13th National People's Congress indicates that, whether or not it is favorable to develop the productivity should become the starting point from which we consider issues, and the basic standard by which we check all the work. It also indicates that, with the goal of common prosperity, part of the people are encouraged to become rich first through honest labor and lawful operations, and that those who seek exorbitant profits by illegal means shall be subject to severe sanction according to laws. These shall become the guideline of our trial of economic crime cases.

  3. Major and serious cases shall be well handled continually. Since the Working Conference on the Trial of Major and Serious Cases of Nationwide Courts held last year, localities at all levels have handled a batch of major and serious cases severely, some tough cases have been handled which makes a good social effect. Practice has proved that, the method of getting involved ahead of time and break-through made in key areas with regard to some major and serious cases, is effectual. In the future, break-through shall be made by catching major and serious cases so as to promote the development of struggle against serious economic crimes.

  4. The ideological guideline of seeking truth from facts shall be adhered to, and the crime shall be strictly distinguished from non-crime.

  (1) In recent years, there appear enterprises operating in form of contract and lease, and enterprises affiliated to collectives as an individual, whose nature sometimes is difficult to distinguish. When trying embezzlement cases arising from these enterprises, the first thing should be done is to define the enterprise' nature——whether it is collective or individual, or it is collective in name, but individual in essence. Secondly, it shall be defined whether public property is misappropriated or property belonging to individuals in fact is occupied. In recent years, owing to lax examination during the enterprise registration in some places, the Business Licenses obtained by some enterprises cannot reflect truthfully their ownership nature, which causes difficulties to the judicial authorities in trying some criminal cases. On December 18,1987, the State Administration for Industry and Commerce, in the Notice concerning the Handling of the Problem that Individual Enterprises, Enterprises Operating in Partnership and Private Enterprises Have Obtained the Business Licenses of Collective Enterprises, indicates explicitly that the Business License obtained by these enterprises can not truthfully reflect their ownership nature. The administrative authority of industry and commerce shall, in accordance with relevant provisions of General Principles of the Civil Law of the People's Republic of China, and the Interim Regulations for the Administration of Urban and Rural Individual Businesses, etc., rectify the enterprises which have obtained the Business Licenses of collective enterprises, but in essence are individual enterprises, enterprises in partnership, and private enterprises. The People's Courts, when trying such kind of cases, shall adopt a deliberate attitude and make specific analysis on specific cases. For enterprises which have obtained the Business Licenses of collective enterprises, but in essence are individual enterprises, as long as the contractor, or the lessee, or the operator affiliated to a collective enterprise indeed get rich through hard-work, operate lawfully, has fulfilled the obligations as contracted, has paid tax payments pursuant to provisions, and has paid wages and bonus, despite that he has made a big fortune, or because of his suspicion of policies, he has occupied property in fact belonging to himself by certain means of concealment or practicing fraud, he shall not be convicted of embezzlement offence. For enterprises which are indeed collective, if the contractor, the lessee, or other personnel entrusted to engage in public service thereof constituted a crime, he shall be investigated as an embezzlement offence for criminal responsibility.

  (2) Where some cadres, in foreign economic and trade activities, accept bribes from foreign businessmen or businessmen from Hong Kong or Macao, thus causing serious losses to the State's property, they shall be investigated and dealt with severely pursuant to law. Where foreign businessmen or businessmen from Hong Kong or Macao, in light of trade practice, give the State's functionary brokerage or commissions in economic and trade activities, the State's functionary shall hand in the brokerage or commissions concerned. If they fail to do so and constitute a crime, they shall be investigated for criminal responsibility for the offence of accepting bribes. However, as far as foreign businessmen and businessmen from Hong Kong and Macao are concerned, if they failed to obtain illegal interests, generally they shall not be dealt with as offenders of offering bribes. It is unanimously believed that it is favorable for them to continue to carry out economic and trade activities with us.

  (3) In recent years, it has been found out that some tax cadres, owing to having accepted bribes, collude with individual businesses or other entities by giving them counsel for tax evasion. Those who enforce law but violate law shall be punished severely pursuant to law and be punished in light of not only the amount of bribes they accepted, but also the losses they caused to the State.

  (4) In order to enforce law seriously, where enterprises, institutions, government departments, and public organizations smuggle, which involves a large amount and constitutes a crime, as long as facts are clear and evidences are authentic, the persons directly in charge and the other persons directly responsible shall be investigated for criminal responsibility pursuant to law, and entities concerned shall be punished with a fine, and a confiscation of the smuggled goods, articles, transportation equipments for smuggling and illegal incomes. In order to protect the State's interests, we shall absolutely not substitute fine for punishment

  (5) When trying cases of serious economic crimes, attention shall be paid to correctly applying such accessory penalties as confiscating property, fine pursuant to law.

  5. Study shall be strengthened. Our ideology shall keep up with the development of subjective situations. Court's staff members should study the documents of the 13th National Congress seriously, make a good understanding on the spiritual essence of the documents, and study the policies and reality of reforming and opening. With the further development of the reform and opening to the outside world, some new laws and regulations will be formulated successively. Therefore, we shall be organized to study them in time, and correctly apply them to the trial practice, so as to meet the needs of the changing situation, and provide better service for socialist economic construction and four modernizations.

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