The Judicial Determination Of Performance Shares Bribery When There Is No Actual Transfer Of Shares

With the development of economy and society, the means of bribery crime is also in continuous development and change. Criminal means is gradually more subtle and complicated, which shows new features, and has a stronger characteristics of the marketization. In the case of performance shares bribery, the particularity of performance shares makes traditional power-for-money deal change from direct to indirect, blurring the line between crime and non-crime. In the case of no actual transfer of shares, for judicial practice, it is difficult to grasp the key point of identifying the types of accomplishment and attemption of performance shares bribery, as well as dealing with the performance shares which has not be transfered. This article intended to start with the case of OuyangTiansheng bribery, analyze the case of typical point of controversy. By comparing different views and referring to the content of "The Advice of Supreme People's Court, Supreme People's Procuratorate on handling a number of issues on application to the bribery criminal case law", the analysis of difficult problems in performance shares bribery cases may provide ideas for judicial practice department to deeply understand and correctly identify performance shares bribery cases.The full text is divided into the next three sections:Section 1 is about the basic situation of the case. Since the case had went through the first and the second instance, and been pronounced in different judgements, the focus controversies and disagreements can be clarified and listed in the whole case.Section 2 is legal analysis. This section analyse controversial issues involved in the case and come to conclusions, according to the focus controversies it was divided into three parts:1.Whether there exist a bribery when there is no actual transfer of the shares. First, the establishment of bribery is not on the premise of the establishment of taking bribes, taking the narrow sense of the correspondence offense limited the scope of it. Second, there is a convolution relationship between bribery and accepting bribes, but neither of them is a prerequisite for the establishment of each other. Last, the establishment of shares bribery crime should not be affected, even though there is no actual transfer of share; 2. How to identify the criminal pattern of bribery when there is no actual transfer of the shares. Talking about the standard of completed offense of bribery, each of the three doctrines has its theoretical deficiency, it is more reasonable to adopt the doctrine of payment and acception. To be attempted bribery, three requirements have to be meet, which are having started to perpetrate a giving act, the act of offering bribes is unfinished, and the national staff do not accept any financial inducement is on cause beyond volition. 3. How to define the value of performance shares and how to deal with performance shares when there is no actual transfer of the shares. Two conditions should be taken into discussions: one is that when both parties do not want to transfer shares subjectively, but give so-called dividends instead, the actual benefits got from dividends would be treated as bribe amount. The other one is that after both parties have reached a consensus, dividend payment have been made in advance, although the actual transfer is not valid yet, then party who receives shares should be considered as gaining rights of shares already, where the actual transfer happens in performance shares, so the value of shares should be treated as bribe amount. When there is neither actual transfer of shares nor dividend payments, it is more suitable to make the loss of country caused by the power-for-money deal as the main circumstance of sentencing to perform conviction and sentencing of bribery crime.Section 3 is the analysis and conclusion of this case. There is correspondent relationship between Ouyangtiansheng's bribery and Jiao's act of accepting bribes. Instead of the correspondent relationship, the theory of crime composition should be based on when judging Ouyangtiansheng's bribery. Ouyangtiansheng's behavior of offering bribes has already meet the requirements of bribery crime constitution. Jiao's criminal judgment that does not make decision of guilty verdict for receiving performance shares should not affect the establishment of Ouyangtiansheng's bribery; for there are no actual transfer of shares is due to the cause beyond volition, this bribery should be affirmed attempted. In the condition of no actual transfer of shares, the weight of bribe amount should be cut back in conviction and sentencing, and the loss of country caused by the power-for-money deal should be considered, only then can it achieve balance between crime and punishment.Section 4 is illumination concerning the case study.