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Guiding Case No. 8 of the Supreme People's Procuratorate: People v. Yang for neglecting duties, bending the law for personal gains and accepting bribes
检例第8号:杨某玩忽职守、徇私枉法、受贿案
【法宝引证码】

Guiding Case No. 8 of the Supreme People's Procuratorate: People v. Yang for neglecting duties, bending the law for personal gains and accepting bribes

 检例第8号:杨某玩忽职守、徇私枉法、受贿案

(Guiding Case No. 8 of the Supreme People's Procuratorate)

 检例第8号

[Keywords]

 【关键词】

Crime of neglecting duties, crime of bending the law for personal gains, crime of accepting bribes, causation, joinder of penalties for plural crimes

 玩忽职守罪 徇私枉法罪 受贿罪 因果关系 数罪并罚

[Key Points]

 【要旨】

This case has two key points. One is the determination of the causation in a crime of malfeasance in office. Where a state official with a duty of supervision fails to diligently perform his or her duty of supervision and therefore fails to effectively prevent the occurrence of harmful consequences, the act of malfeasance in office that has a causative potency for such harmful consequences should be determined to have causation with harmful consequences in accordance with the Criminal Law. The other is the punishment principle for concurrently committing the crime of malfeasance in office and the crime of accepting bribes. Where a state official who commits the crime of malfeasance in office also accepts bribes, if the crime of accepting bribes is concurrently committed, the state official shall be subject to a joinder of penalties for the crime of malfeasance in office and the crime of accepting bribes, except as otherwise provided for by Article 399 of the Criminal Law.

 本案要旨有两点:一是渎职犯罪因果关系的认定。如果负有监管职责的国家机关工作人员没有认真履行其监管职责,从而未能有效防止危害结果发生,那么,这些对危害结果具有“原因力”的渎职行为,应认定与危害结果之间具有刑法意义上的因果关系。二是渎职犯罪同时受贿的处罚原则。对于国家机关工作人员实施渎职犯罪并收受贿赂,同时构成受贿罪的,除刑法三百九十九条有特别规定的外,以渎职犯罪和受贿罪数罪并罚。

[Relevant Legislation]

 【相关立法】

Articles 397, 399, 385, and 69 of the Criminal Law of the People's Republic of China

 中华人民共和国刑法》第三百九十七条北大法宝、第三百九十九条、第三百八十五条、第六十九条

[Basic Facts]

 基本案情

Defendant Yang, male, born in 1958, former chief of Tongle Police Station, Longgang Branch of the Public Security Bureau of Longgang District, Shenzhen City.

 被告人杨某,男,1958年出生。原系深圳市公安局龙岗分局同乐派出所所长。

The facts of the crimes are as follows:

 犯罪事实如下:

 
I. Crime of neglecting duties 一、玩忽职守罪

Wuwang Dancing Hall in Longgang District, Shenzhen City, as operated by Wang (handled in another case), was founded on July 9, 1999, upon approval of the Administration for Industry and Commerce of Shenzhen City, with its business address at Longping Road, Longgang District. In 2006, the business license of this Dancing Hall was legally revoked. On September 8, 2007, without approval of the relevant authorities, Wang operated Wuwang Club in Sanhe Village, Longdong Community, Longgang Sub-District, within the jurisdiction of the Tongle Police Station. Since October 2001, Yang had been the chief of Tongle Police Station. Several days before the grand opening of Wuwang Club, in order to obtain favor from Tongle Police Station, Wang treated Yang and others at Chuanxiang Restaurant operated by He, Yang's wife. Afterwards, in the information gathering and filing and the routine inspection on Wuwang Club by police officers of the Sanhe responsibility division of Tongle Police Station, it was found that Wang could not produce necessary certificates such as the fire control permit and the permit for entertainment operations, the name and address on the photocopy of the business license provided were inconsistent with the actual ones and the business license had expired. After being informed of such information, Yang did not urge the police officers in the responsibility division to ban Wuwang Club in a timely manner as legally required. The police officers in the responsibility division also found that there were hidden dangers such as operating overtime, exceeding capacity, suspected activities of prostitution and drug dealings, failure to have professional security guards, and occurrence of multiple public security cases. Yang neither ordered Wuwang Club to cease business for a major overhaul nor ordered police officers in the responsibility division to track and oversee the overhaul of Wuwang Club as legally required.

 1999年7月9日,王某(另案处理)经营的深圳市龙岗区舞王歌舞厅经深圳市工商行政管理部门批准成立,经营地址在龙岗区龙平路。2006年该歌舞厅被依法吊销营业执照。2007年9月8日,王某未经相关部门审批,在龙岗街道龙东社区三和村经营舞王俱乐部,辖区派出所为同乐派出所。被告人杨某自2001年10月开始担任同乐派出所所长。开业前几天,王某为取得同乐派出所对舞王俱乐部的关照,在杨某之妻何某经营的川香酒家宴请了被告人杨某等人。此后,同乐派出所三和责任区民警在对舞王俱乐部采集信息建档和日常检查中,发现王某无法提供消防许可证、娱乐经营许可证等必需证件,提供的营业执照复印件上的名称和地址与实际不符,且已过有效期。杨某得知情况后没有督促责任区民警依法及时取缔舞王俱乐部。责任区民警还发现舞王俱乐部经营过程中存在超时超员、涉黄涉毒、未配备专业保安人员、发生多起治安案件等治安隐患,杨某既没有依法责令舞王俱乐部停业整顿,也没有责令责任区民警跟踪监督舞王俱乐部进行整改。

In March 2008, under the deployment of the “Mine Sweeping” Campaign in Longgang District, Tongle Police Station established a special action team for the “Mine Sweeping” Campaign, headed by Yang. On March 12, 2008, the relevant authorities notified Tongle Police Station of Wuwang Club's hidden dangers in public security and fire control, but Yang did not urge the police officers in the responsibility division to track the practical implementation of overhaul measures, as a result of which Wuwang Club's hidden dangers were not eliminated in a timely manner.

 2008年3月,根据龙岗区“扫雷”行动的安排和部署,同乐派出所成立“扫雷”专项行动小组,杨某担任组长。有关部门将舞王俱乐部存在治安隐患和消防隐患等于2008年3月12日通报同乐派出所,但杨某没有督促责任区民警跟踪落实整改措施,导致舞王俱乐部的安全隐患没有得到及时排除。

From June to August 2008, the Public Security Department of Guangdong Province organized the “Information Campaign for One Hundred Days.” Yang failed to urge police officers in the responsibility division to truthfully report Wuwang Club's unlicensed operations, and took no appropriate control measures against Wuwang Club. Wuwang Club failed to obtain the fire control permit in accordance with the Fire Protection Law and the Provisions on Administration of the Fire Protection Supervision and Review of Building Engineering Projects , and did not pass the fire control inspection before the grand opening. Wuwang Club opened for business without approval, operated illegally, and failed to implement the safety management rules and measures during its operations, which resulted in an exceptionally serious fire disaster on September 20, 2008, with the severe consequences of 44 dead and 64 injured. Yang and the staff members of other relevant entities were mainly liable for this exceptionally serious fire accident.

 2008年6月至8月期间,广东省公安厅组织开展“百日信息会战”,杨某没有督促责任区民警如实上报舞王俱乐部无证无照经营,没有对舞王俱乐部采取相应处理措施。舞王俱乐部未依照《消防法》、《建筑工程消防监督审核管理规定》等规定要求取得消防验收许可,未通过申报开业前消防安全检查,擅自开业、违法经营,营业期间不落实安全管理制度和措施,导致2008年9月20日晚发生特大火灾,造成44人死亡、64人受伤的严重后果。在这起特大消防事故中,杨某及其他有关单位的人员负有重要责任。

 
II. Crime of bending the law for personal gains 二、徇私枉法罪

In the early hours of August 12, 2008, when leaving Wuwang Club by taking an elevator after consumption, Jiang, Wang, Zhao and others quarreled with the other customers in the same elevator, and security guards of Wuwang Club came to dissuade them. In the course of the dispute, Yi, a security guard of Wuwang Club, Luo, an employee of Wuwang Club, and other three persons fought with Jiang and others on the first floor of Wuwang Club, which caused slight injuries to Jiang, Wang and Zhao. According to Yang's instructions, Luo and Yi from Wuwang Club were officially investigated for the suspected crime of intentional injury. On the next day, Tongle Police Station detained the persons involved in this case. Afterwards, Wang, the person in charge of Wuwang Club, called Yang many times, and sought help from He, Yang's wife, so that by mediation, the staff of Wuwang Club could evade criminal penalty. To this end, Wang gave He 30,000 yuan at the parking lot of the Central City Post Office in Longgang District. After accepting the money, He told Yang in a short message. Knowing that this case was not a case that could be mediated, Yang still agreed to help, and designate Liu who was not a police officer handling this case to coordinate the mediation. On September 6, 2008, both parties reached a reconciliation agreement with compensation in the amount of 110,000 yuan. Yang then arranged for the case-handling police officer to close the case by mediation. On September 7, the relevant persons of Wuwang Club were released from criminal detention without being prosecuted.

 2008年8月12日凌晨,江某、汪某、赵某等人在舞王俱乐部消费后乘坐电梯离开时与同时乘坐电梯的另外几名顾客发生口角,舞王俱乐部的保安员前来劝阻。争执过程中,舞王俱乐部的保安员易某及员工罗某等五人与江某等人在舞王俱乐部一楼发生打斗,致江某受轻伤,汪某、赵某受轻微伤。杨某指示以涉嫌故意伤害对舞王俱乐部罗某、易某等五人立案侦查。次日,同乐派出所依法对涉案人员刑事拘留。案发后,舞王俱乐部负责人王某多次打电话给杨某,并通过杨某之妻何某帮忙请求调解,要求使其员工免受刑事处罚。王某并为此在龙岗中心城邮政局停车场处送给何某人民币3万元。何某收到钱后发短信告诉杨某。杨某明知该案不属于可以调解处理的案件,仍答应帮忙,并指派不是本案承办民警的刘某负责协调调解工作,于2008年9月6日促成双方以赔偿人民币11万元达成和解。杨某随即安排办案民警将案件作调解结案。舞王俱乐部有关人员于9月7日被解除刑事拘留,未被追究刑事责任。

 
III. Crime of accepting bribes 三、受贿罪

From September 2007 to September 2008, by taking advantage of his position, Yang sought benefits for Wang, the person in charge of Wuwang Club, and accepted kickbacks of 300,000 yuan in total either by himself or through his wife, He.

 2007年9月至2008年9月,杨某利用职务便利,为舞王俱乐部负责人王某谋取好处,单独收受或者通过妻子何某收受王某好处费,共计人民币30万元。

[Proceedings]

 【诉讼过程】

On September 28, 2008, the People's Procuratorate of Shenzhen City officially opened criminal investigation against Yang on suspicion of bending the law for personal gains. On October 25, he was detained, and on November 7, he was arrested. On November 13, after the close of investigation, this case was transferred to the People's Procuratorate of Longgang District, Shenzhen City for prosecution. On November 24, 2008, the People's Procuratorate of Longgang District, Shenzhen City instituted a public prosecution against Yang for the crimes of neglecting duties, bending the law for personal gains, and accepting bribes. In the original trial, a motion for continuance was granted once. On May 9, 2009, the People's Court of Longgang District, Shenzhen City issued a sentence, holding that: Yang, as the chief of Tongle Police Station, had the duty of supervision over recreational places within its jurisdiction. Knowing that Wuwang Club operated without a business license as legally required and there were many hidden dangers in fire control and public security, Yang was gravely irresponsible, and failed to diligently perform his duties, as a result of which Wuwang Club that should have ceased business for a major overhaul or been banned continued its illegal operations for a year and an exceptionally serious fire disaster with 44 dead and 64 injured finally occurred, causing heavy loss to people's lives and property. Yang's acts constituted the crime of neglecting duties with especially serious circumstances. Knowing that the case that occurred in Wuwang Club where Jiang and others were beaten up should be prosecuted and did not satisfy the requirements for the close of a case by mediation, Yang still gave instructions to close this case by mediation. His acts constituted the crime of bending the law for personal gains. However, since Yang also accepted bribes while bending the law for personal gains, and he had been prosecuted for the acceptance of bribes, he should be convicted and punished only for the crime of accepting bribes in accordance with Article 399 of the Criminal Law. Yang, as a state employee, by taking advantage of his position, illegally accepted a large amount of money from Wang, the person in charge of Wuwang Club, to seek benefits for Wang. His acts constituted the crime of accepting bribes. Before a compulsory measure was taken against him, Yang voluntarily confessed to all facts of his acceptance of bribes, which was voluntary surrender. His wife, He, returned all illicit money, and Yang may be given a lighter punishment. In accordance with paragraph 1 of Article 397, paragraphs 1 and 4 of Article 399, paragraph 1 of Article 385

画风不对,如何相爱

, Article 386, paragraphs 1(1) and 2 of Article 383, Article 64, paragraph 1 of Article 67, and paragraph 1 of Article 69 of the Criminal Law of the People's Republic of China, Yang was sentenced to imprisonment of five years for the crime of neglecting duties and ten years for the crime of accepting bribes. The term of imprisonment in total was 15 years, but as the court decided, imprisonment of 13 years was to be served. The recovered illicit money of 300,000 yuan as bribes accepted should be confiscated and turned over to the state treasury according to the law. After the sentence was pronounced, Yang did not appeal within the statutory time limit, nor did the procuratorate. The sentence came into force.
 2008年9月28日,杨某因涉嫌徇私枉法罪由深圳市人民检察院立案侦查,10月25日被刑事拘留,11月7日被逮捕,11月13日侦查终结移交深圳市龙岗区人民检察院审查起诉。2008年11月24日,深圳市龙岗区人民检察院以被告人杨某犯玩忽职守罪、徇私枉法罪和受贿罪向龙岗区人民法院提起公诉。一审期间,延期审理一次。2009年5月9日,深圳市龙岗区人民法院作出一审判决,认为被告人杨某作为同乐派出所的所长,对辖区内的娱乐场所负有监督管理职责,其明知舞王俱乐部未取得合法的营业执照擅自经营,且存在众多消防、治安隐患,但严重不负责任,不认真履行职责,使本应停业整顿或被取缔的舞王俱乐部持续违法经营达一年之久,并最终导致发生44人死亡、64人受伤的特大消防事故,造成了人民群众生命财产的重大损失,其行为已构成玩忽职守罪,情节特别严重;被告人杨某明知舞王俱乐部发生的江某等人被打案应予刑事处罚,不符合调解结案的规定,仍指示将该案件予以调解结案,构成徇私枉法罪,但是鉴于杨某在实施徇私枉法行为的同时有受贿行为,且该受贿事实已被起诉,依照刑法三百九十九条的规定,应以受贿罪一罪定罪处罚;被告人杨某作为国家工作人员,利用职务上的便利,非法收受舞王俱乐部负责人王某的巨额钱财,为其谋取利益,其行为已构成受贿罪;被告人杨某在未被采取强制措施前即主动交代自己全部受贿事实,属于自首,并由其妻何某代为退清全部赃款,依法可以从轻处罚。依照《中华人民共和国刑法》第三百九十七条第一款,第三百九十九条第一款、第四款,第三百八十五条第一款,第三百八十六条,第三百八十三条第一款第(一)项、第二款,第六十四条,第六十七条第一款,第六十九条第一款之规定,判决被告人杨某犯玩忽职守罪,判处有期徒刑五年;犯受贿罪,判处有期徒刑十年;总和刑期十五年,决定执行有期徒刑十三年;追缴受贿所得的赃款人民币30万元,依法予以没收并上缴国库。一审判决后,被告人杨某在法定期限内没有上诉,检察机关也没有提出抗诉,一审判决发生法律效力。






















 
     
     
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