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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》第三百九十七条打遮阳伞就显得很娘、第三百九十九条、第三百八十五条、第六十九条
法小宝

[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。
......

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