Case Study About Bribery Cases Of Performance Shares

Based on the second trail judgement on the bribery of performance shares that can be found in online judicial documents since 2015,the author finds out that in China’s judicial practices,the arguments about the cases of performance share bribery mainly focus on three aspects.First,the determination of the actual transfer of the performance shares.Second,the determination of the amount of bribery.Third,the determination of whether it’s an attempted or accomplished bribery.By combing through the bribery cases of Zhao and Mao and the bribery cases involving non-state workers of Gao and by summarizing and analyzing the focuses of controversy,the author concludes that the determinations of the actual transfer of performance shares requires,first,to determine whether the cases can be classified into the briberies of performance shares,which mainly relies on whether the state staff who did not make any contribution gain the companies’ shares and whether the purpose of the bribery is to obtain the company’s shares and dividends;second,to pay attention to distinguish the judgements of similar situations,such as,the transactions with low prices of the shares cannot be classified as briberies of transactions,but as the briberies of performance shares;in the case of transfer bribery under shells,defective capital contribution or withdrawal of capital contribution will not affect the identification of bribery crime;third,to realize that the determination of the actual transfer of shares should be judged from the essence of the transfer,not simply by signing an agreement.In determining the amount of bribes,we should first judge whether the shares have already been transferred or not.If the shares have been transferred,the value of the shares should be taken as the amount of bribery,and the value of shares should be determined by the method close to the actual situation of the company.And if the shares have not been transferred,the actual dividends received shall be taken as the amount of bribery.In the determination of whether it’s an attempted or accomplished bribery,whether or not the crimes are committed to seek benefits for others should not be a consideration factor,but should take receiving other people’s property as the standard of accomplished bribery.In the bribery of performance shares,the standard of accomplishment should be the transfer of shares or the receipt of dividends.By analyzing the cases,we may find that there are some problems in the application of‘Opinions on the Application of Law in Handling Criminal Cases of Bribery,’ and in view of these problems,some thoughts are put forward.The dividend incomes of performance shares should be recognized as the amounts of bribe,which not only conforms to the constitutive requirements of bribery crime,but also implements the criminal justice policy to combat the duty crime.Whether the equity transfer should not be the dividing point of determining the amount of bribes,but it is of great significance to judge the attempted crime.