In practice, there are various and controversial situations regarding whether borrowing from others by public officials constitutes bribery. Especially when public officials use their power to seek benefits for others, their borrowing behavior is more likely to be identified as bribery.

In order to accurately convict, the Supreme Court provided specific judgment criteria in the "Minutes of the National Symposium on the Trial of Economic Crime Cases by Courts" in 2003, namely: (1) whether there are legitimate and reasonable reasons for borrowing; (2) The whereabouts of the funds; (3) How is the normal relationship between the two parties and whether there are any economic exchanges; (4) Does the lender require state personnel to use their position to seek benefits for them; (5) Is there any intention or behavior of repayment after borrowing; (6) Whether there is the ability to return; (7) The reason for not returning; Wait a minute. These considerations have become the yardstick for judicial professionals to distinguish between borrowing and bribery, with the most important factors being whether there is a legitimate and reasonable reason for borrowing and whether there is the ability to repay. However, a recent bribery case handled by the author was triggered by a loan. The prosecution and defense have engaged in a heated debate over the necessity of borrowing money and the ability to repay it, resulting in a serious conflict over whether it is borrowing money or accepting bribes.

Basic facts of the case

A is a national staff member who used his position to seek benefits for multiple private entrepreneurs. Then borrow money from these bosses to speculate in real estate and stocks. A has been borrowing money to invest in the real estate and stock markets since 2004, and has continued to borrow tens of millions of yuan. Except for a loan of 200000 and 400000 yuan, all other loans are transferred to the accounts of A himself or his son, sister, and other immediate family members through bank transfer. Most loans do not have agreed repayment terms and interest rates, and some do not include IOUs. A and B continue to make repayments one after another, paying interest at the time of repayment. During the period from 2013 to 2015, the repayment behavior of Party A was relatively concentrated. A's explanation is that during this period, his house had a maximum of 18 units, and several securities accounts began to make profits in 2013 after years of losses, and achieved huge profits in the 2015 bull market. In 2018, Party A was investigated for serious violations of law and discipline, and some of the above-mentioned loans were identified as bribery. But A does not approve of this part of the accusation.

Lawyer Analysis

In the trial, the prosecutor accused Party A of taking bribes for his borrowing behavior on the grounds that Party A had no need to borrow and had the ability to repay but did not repay in a timely manner. However, the author believes that for investment based loans, the necessity of borrowing and timely repayment cannot be used as the criteria for judging bribery. The important thing is to see whether Party A has subjective intent to take possession of it.

The commonly understood reason for borrowing is to seek help from others when encountering difficulties or urgent matters that one cannot solve. It is undeniable that most borrowing is for urgent needs, but there are also borrowing to seek greater benefits. Both companies and individuals will borrow money or loans for investment or production and operation. Even large companies with large scale, strong strength, and good operations will operate with loans. Many wealthy people also often take out loans to buy houses and cars, or engage in margin trading and stock trading. It's not that these companies or individuals are in a critical situation, nor are they out of money. They just want to acquire more working capital through financing or leverage greater capital to achieve greater investment benefits. For example, in this case, Party A has no worries about food and clothing, and also has some idle money in hand, so there is no urgent need to borrow money. But in order to obtain greater returns from real estate or stock trading, they only proposed borrowing from others and promised interest. The philosophy of A is that if I accept one million from my bosses, it becomes a crime, but it is legal for me to borrow their money to earn one million. It is precisely by adhering to this principle that A continuously borrows money to invest in the housing and stock markets, and also pays interest on the money.

Regarding the issue of timely repayment. Do you have the ability to repay but just want to keep it for yourself? If for a certain loan, Party A can repay it in a timely manner. But the purpose of borrowing money from A is to speculate in stocks and real estate, and the longer the investment time, the more profitable it will be, so A did not repay it in a timely manner. When Party A borrows money, there is no specific repayment date agreed upon, and they are all treated according to specific circumstances. The term of borrowing can vary from eight to nine years to a few months. Some lenders request repayment, and A immediately finds a way to repay it, even if it is borrowed money. Some lenders are not in a hurry to use the money, so A will use it longer until they make a profit in real estate and stock trading. But by the time the stock market made a profit in 2015, A had repaid all the loans from previous years.

Through A's behavior, it is not difficult to see that he gained the right to borrow money by using his authority to seek benefits for others. Otherwise, no one would be willing to lend him a large amount of money and not demand it. But the prosecution believes that Party A uses its power to seek benefits for others, but also borrows money without necessity and fails to return it in a timely manner, thus constituting the crime of bribery. Judging A's behavior based on the necessity of borrowing and repayment ability clearly deviates from the essence of A's behavior and fails to grasp its true purpose.

In practice, A is not an exception, and similar situations are not uncommon. Many national workers do not face financial difficulties in their daily lives and borrow money from those who have their own needs, just to invest and profit. Even if there is no agreed repayment date and interest, as long as they have repayment behavior and actually repay the loan, their behavior cannot be considered as bribery.

Therefore, the discrimination between borrowing and bribery cannot be based solely on the necessity of borrowing and the ability to repay, but should be comprehensively judged based on whether there is a purpose of "taking possession of oneself".

The author believes that the analysis of the borrowing and investment behavior of national staff should grasp the following aspects:

1. The method of borrowing money. The method of borrowing money provides a more intuitive proof of the actor's mentality and purpose when borrowing money. If the perpetrator borrows money through bank transfer, whether it is transferred to their own, relatives, or other names, it is generally considered that there is no attempt to illegally possess. Because bank transfers leave permanent marks and can be checked at any time, people with bribery intentions usually do not use this method. On the contrary, when the perpetrator borrows money, they require cash, especially large amounts of cash that are troublesome to withdraw and deposit, indicating that the perpetrator has a desire to avoid leaving traces or being easily investigated, and there is a possibility of bribery.

2. Is it really an investment. The criterion for determining the authenticity of a borrower's borrowing purpose is whether they actually invest after borrowing money. If the perpetrator borrows money and does not invest according to the prior agreement, but instead engages in consumption and extravagance or other behaviors that make it difficult to repay, it indicates that they do not have the willingness and preparation to repay, and the tendency to accept bribes is more obvious. If the agreed investment is made after borrowing, even if the investment fails and cannot be repaid temporarily, it cannot be considered as bribery.

3. Follow the usual investment deadline. Any investment has a rough term, whether it is in real estate or stock trading, investing in some projects, or even lending to others for investment. As long as the actor repays the loan at the end of the investment term, it indicates their true intention to borrow. If the repayment is not made after the end of the investment or within a reasonable investment period, it indicates an intention to take possession of it. For example, when housing prices have risen to a certain extent and profits have been made, investing in a certain project should repay the loan at the end of the project. If there is no relatively clear deadline for continuous borrowing and investment, or even repeated investment or conversion to other projects, it indicates that the perpetrator has regarded the money of others as their own.

4. Whether to repay after profit. The timely repayment of investment profits by the actor is an important criterion for judging borrowing and bribery. Since the purpose of borrowing money by the perpetrator is for investment, the loan should be repaid when the investment is profitable. If they continue to own the loan after making a profit, their intention not to repay is more obvious.

5. Motivation for repayment. The motivation for repayment refers to the circumstances and reasons under which the actor made the repayment. If the actor repays the loan due to the completion of the agreed investment period, the profit of the investment, or the end of the investment project, etc., it proves to be a normal borrowing behavior. On the contrary, if the perpetrator or related personnel are investigated and hastily repay in order to cover up the crime, it proves that this "borrowing" is actually bribery. For example, in this case, A returned all the loans after gaining profits from stock trading in 2015, while its investigation was organized in 2018. So A's behavior is the normal repayment after investing in profits, rather than covering up the crime.