Part XXX (30) Zhiwei Tong (童之伟) Series: "The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance"

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. The Series continues.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao, Bo Wang, and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXX) we translate (via Bo Wang):
-->The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations--My Thoughts On the Written Judgment of Bo Xilai’s First Instance (Sept. 22, 2013).

 
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(Michael Sheridan, Defiant Bo Xilai rattles party at show trial, The Australian, Aug. 25, 2013; caption: "Fallen political star Bo Xilai listens to testimony during his corruption trial in Jinan. Picture: AP Source: AP"; "Bo has recanted every admission he made before the trial, citing heavy pressure under interrogation. His lawyer has said that statements extracted, like his, under the Communist party's internal disciplinary system are not supposed to be used in court. More significantly, independent Chinese lawyers and analysts have started to pick gaping holes in aspects of the prosecution case which propaganda chiefs have been at a loss to explain.")

The Punishment Decision Should Be Made Based on Criminal Facts and Law Regulations------My Thoughts On the Written Judgment of Bo Xilai’s First Instance

Tong Zhiwei 09-22-2013

Jinan Intermediate People’s Court today has announced penalty on Bo Xilai’s offence of bribery, corruption, and misfeasance. Cumulative punishment has determined his life imprisonment, deprivation of political right and confiscation of all personal property. I actually had predicted this sentence and my general perception thinks this is reasonable in line with facts and laws.

On the other hand, I have to say that the Court is very magnanimous to Bo Xilai. Bo had plea of not guilty, but the Court didn’t give him a heavier punishment on this. The amount of bribes by Wen Qiang was much smaller than Bo. However, when Bo was in power in Chongqing, Wen Qiang was sentenced to death penalty and it was an immediate execution. Compared to Wen Qiang’s case, the Court is actually very impartial based on law regulations.

The fact of Bo’s corruption is out there. Bo can never deny the evidence that he got bribed and I don’t need to add more words on this. Nonetheless, I have some thoughts on how the Court affirm Bo’s offence of corruptions and power abuse.

What Bo claimed in the Court that he hadn’t knew anything about monetary bribery is totally bullshit. His bribery is same with typical bribery model in China. He provided convenience to businessmen and took advantages of policy, while his wife and son take the bribed money. Many officials’ “wallets” are continually supported by this means. It is normal and possible that Bo hasn’t known details about how the money goes. However he could never deny fact that his wife and son took pecuniary benefit from Xu Ming (a tycoon in Dalian) which is impossible and not trustable. He admitted that Xu Ming was nice to his son in the Court. If a professor shows concern and attention to students’ coursework, it is natural and understandable. But in what means can a businessman benefit his son? In addition to spend money, what else can he or she do? At least, in a way of logical thinking economic benefit transfer is the prominent way, while the others are secondary.

Bo could defend that the preferential policy by him was exercise of official powers. But among all the businessmen, who to support and why should be reexamined and investigated more carefully. Personal relationship is one of the major concerns and considerations. The relationship between politics and commerce is very tricky today. The local governors can actually control the success and failure of a business. For this circumstance, Bo knows much better than our internet users. Although Bo has huge ambition in politics, the process has revealed that he didn’t break away from corruption of politics and commerce. Further, he got involved into corruption voluntarily. The key evidence is that Bo allowed his wife and son to develop intimate personal relationship with Xu Ming. If Bo was really upright enough with integrity, he should stop their relationship going further or monitor the relationship closely on the details, especially on the monetary relationship. But he did not do anything about this.

From another perspective, Bo’s son got economic benefit at least hundreds of thousands of Yuan, even millions Yuan a year. If his son doesn’t tell Bo in exact amount, at least a rough number, his son is thought to be lacking of family education and gratitude. One tradition in Chinese family educations is to teach children to have gratitude to people who helped them and tell their parents in order to do favor in return to help providers. I believe Bo’s family tradition should endorse this for sure. Unfortunately, Bo denied this completely in the Court. If Bo’ son didn’t mention anything about Xu Ming’s economic benefit for him, I could be speechless about Bo’s family tradition.

In the process of investigation and prosecution of Bo’s case, the judiciary is always very courteous to Bo. About rumors we may not say anything, but there is definitely some transfer of economic benefit on the accusation “womanizing or intimacy with several women”. No corrupted official can maintain intimacy or womanizing without paying any economic cost. It has never happened before. Could Bo be an exception in the intimate relationships? I think it is impossible. If Bo could do this without paying or just paying with his own wage, this could be a myth. No one would trust this myth. Sexual bribery is difficult to be monetized and incriminated, and no one challenge this tradition. But what I’m saying here is the sexual service Bo has consumed with real money rather than sexual bribery. If someone has paid this for Bo, this should be counted as Bo’s bribed money.

As for power abuse, the Procuratorate and Court have already restricted it to limited area, which is actually very small. Gu kailai (Bo Xilai’s wife)’s illegal offenses were consequences of Bo’s connivance. Gu Kailai was representative of municipal party secretary in Chongqing. She ordered the public security officers to search deputy mayor and police chief’s offices, and offended murdering crime, which led to serious consequences. Bo should hold responsibility directly, and this is of criminal nature. Decades ago, Jiang Qing (Mao Zedong’s wife)’s did a lot of lawlessness, but Jiang was a member of the political bureau and enjoyed to a large degree authorized political power. Gu Kailai didn’t have any formal official capacity, but the extent of its abuses exceeded ten times of Jiang Qing’s. If Bo assumes power of China, just looking at his wife as his was conniving, the horrific consequence might exceed several times of Cultural Revolution, which made me feel chilly.

For so serious criminal issues, I’m very sure that he is very clear about this. His plea of not guilty is based on two major considerations: 1. The Court won’t sentence him to death penalty with immediate execution; no matter how heavy the judgment is made, it is nothing more than a few years in prison and then medical parole. 2. As long as he pleads not guilty, the leftist forces will treat him a “national hero” and spiritual leader and he is a flagship for the leftists. He would think if this situation gets kept and develops, he one day may be able to do dumping tray in politics.

Therefore, based on the two considerations above, coupled with no additional punishment for appeal, Bo is sure to appeal and his plea of not guilty will go further. Of course, I think it is his right to appeal and this should be protected effectively. If Bo could propose new facts or evidences in the second instance to deny the crime of his first instance, I will be happy to see it. However, it appears very difficult for him to achieve this.

罚当其罪——读薄熙来案一审判决书感言
童之伟 2013-09-22

济南市中级人民法院今天对被告人薄熙来以受贿罪、贪污罪、滥用职权罪依法判处刑罚，数罪并罚，决定执行无期徒刑，剥夺政治权利终身，并处没收个人全部财产。这个判决在我的预料之中，我总的印象是，罚当其罪。

如果要我进一步谈认识，我觉得法院对他够宽大的了。在不认罪的情况下，法院其实并没有对他从重处罚。另外，文强受贿数额比薄小得多，但薄主政重庆时，法院判了文强死刑立即执行。与判文强比较，法院对薄的判决要公正得多。

薄贪污的事事摆在那里，薄辩去辩来也没能否定自己收了钱。对薄贪污之事，我不想多说，只对其受贿和滥用职权罪的认定，谈几点感想。

薄推说自己不知道收钱的事，那基本上是鬼话。薄之受贿，所遵循的模式与中国当今大多数贪官一样，都是自己帮商人办事，老婆孩子收钱。很多官员都是这样养“钱包”的。当然，薄不知道老婆孩子收钱得好处的具体细节，十分正常，完全可能，但他要否认自己概括地知道自己老婆孩子不断从徐明那里获得金钱利益，那绝对不可能，也不可信。薄自己承认，徐明对他公子很好。如果一个教授对他公子好，正常理解是关心学业、悉心教导；一个商人对他公子好，除了动用金钱之外，还有什么其它方式呢？至少按常理说主要是提供钱物，其它都是次要的。

薄可以辩称他支持某人是正常行使职权，但在无数商人中选择支持谁不支持谁，可是大有考究，其中私人关系无疑是考量内容之一。今天的政商关系，是地方主政者让谁富谁就能富，让谁败亡谁就能败亡。这种情况，薄比我们任何网友都清楚。薄虽然心怀大志，可从揭示出来的情况看，他还是落入了政商关系腐败的陷阱，而且是自觉自愿跳进出的。这方面的关键证据，是他放手让其妻儿与徐总发展极其密切的私人关系。薄如果真过硬，他会阻止其妻儿与徐总发展私人关系，至少要严密监督这种关系的具体内容，尤其是其中的金钱关系。但他没有任何这方面的表现。

从另一个角度看，薄公子每年获得徐明至少数以十万元计、有时数以百万元计的经济好处，如果他完全不对真正给他带来这种好处的父亲交底，哪怕是概括地交底，那也未免太缺乏家教和感恩之心。中国正常的家庭，父母教导孩子的传统内容之一，就是让孩子知恩图报，要求孩子得了别人家的钱物好处务必告诉父母，以便父母在适当时候以适当方式还人情。我想，薄家的家风中应该有这份传家的忠厚。可惜，薄在庭上的说法完全否定了这一点。如果薄家公子真如同薄宣称的那样，每年虽收受徐总大量钱物却对父亲只字不提，那么我对薄家的家风，就不好说什么了。

在受贿行为的侦查、审查起诉和法院认定范围方面，司法机关对薄够客气的了。传言不好说，就说他“与多名女性发生或保持不正当性关系”必然包含的经济内容吧。没有一个贪官与相关女士维持这种婚外两性关系是不付出经济对价的，从来没有过。难道薄是例外？不可能。要说薄这样做不花钱，或花的是自己的一点工资，那也只能是神话。这类神话，鬼也不信。性贿赂难以折算为金钱，不好入罪，没人挑战这个规矩，但我这里说的不是性贿赂，而是为薄购买性服务支付的真金白银。这种支出理应算作薄的受贿款——如果有人支付过这种款项的话。

至于薄之滥用职权，侦查、审查起诉和法院认定的范围，也已经足够小了。谷开来那些无法无天的行为本身，就是薄纵容的结果，都应该算作他滥用职权的后果。谷开来在重庆俨然就是市委书记的化身，从指挥公安人员到带队搜查副市长、公安局长办公室，再到杀人，后果极其严重，对此薄都负有直接责任，而且应该是刑事性质的。当年别人说江青无法无天，可人家江青还是政治局委员，自己有不小的合法职权，谷开来什么正式官方身份都没有，而其胡作非为的程度却甚江青十倍！薄如果掌握中国大权，光看他纵容其夫人的作为，那就比文革当权者邪恶很多倍，让人不寒而栗。

薄罪行严重，我确信他内心很清楚。他之不认罪，主要基于两种考虑：1.法院反正不会判他死刑立即执行，判多重都无所谓，无非是坐些年牢后保外就医。2；他只要扛住不认罪，挺他的极左势力就会把他当“民族英雄”和精神领袖，把他当做一面大旗高举着；他会想，果若如此，说不定某一天还有个政治上咸鱼翻身的机会。

我相信，基于以上两种考虑，再加上他所了解的上诉不加刑期原则，薄一定还会上诉，把不认罪的戏码继续演下去。当然，上诉是他享有的法定诉讼权利，这项权利应该切实保障。如果薄在二审阶段能够提出新的事实否定一审认定的犯罪事实，做到成功脱罪，我也乐观其成。不过，看来否定一审认定的犯罪事实不太容易。