纪检监察办案中不正当性关系、包养、通奸、权色交易、钱色交易等的认定和区分 [Identification and differentiation of inappropriate sexual relations, support, adultery, power and sex transactions, money and sex transactions and other behaviors in disciplinary inspection and supervision cases]

 

Sex, gender, sex and gender norms, and the disciplining of all of that within social relations embedded in the legalized apparatus of the state and its political organs has long been an important element controlling behaviors.   Almost 20 years ago, in an article focusing on the Global South, I noted:

 Ideologies of gender remain ascendant throughout the world. . . An ideology of gender might, then, be reduced to a cluster of norms, expectations, understandings and the like, derived from the meaning of sex, where sex is used in its multiple and ambiguous senses. These ideologies are imprinted in the law of all states-modem and ancient, religious and secular. These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender. Corruption, especially in the political discourse of religion, has reinvigorated gender discipline in some countries. Psychosis, especially in societies embracing the quasi-absolutism of science, has provided a basis on which gendered policy can be translated into law in many states. Ethno-national chauvinism has found in post-colonial theory the policy basis for reinstituting regimes of gender as an act of socio-cultural purification. (Larry Catá Backer, "Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia," Yale Journal of Law & Feminism 17(1) (2005) pp. 1-63). 

That essay considered the way that that the judgment implicit in gender, sexual, and sexuality taboos have been transposed into the operative language of political discipline  in ways that align both within the context of the sociopolitical system within which it is deployed.

Those sensibilities, and that disciplinary apparatus, is also very much in evidence in Marxist-Leninist systems. One acquires a more refined sense of the transposition to New Era articulations of Chinese Marxist-Leninist in the current historical era of Chinese development from a recent posting appearing on a Chinese web site:   纪检监察办案中不正当性关系、包养、通奸、权色交易、钱色交易等的认定和区分 (13 November 2023)[Identification and differentiation of inappropriate sexual relations, support, adultery, power and sex transactions, money and sex transactions and other behaviors in disciplinary inspection and supervision cases]. The posting is thoroughly unofficial (文章仅供参考。 如需引用请参考官方文档。 转载是为了学习。 如果您有任何疑问，请及时与我们联系。[The article is for reference only. If you need to quote, please refer to the official documentation. Reprinting is for learning. If you have any questions, please contact us in time.]). 

Nonetheless, it provides a succinct exposition of the sexualization of discipline, or perhaps better put, the disciplining of sexualization, in the Chinese current era. The analysis is divided into two broad categories.  The first touches on deviations from expected social or ethical standards (the term used is "anomie") in the sexual relations between men and women (男女性关系失范问题). The second touches on adultery and the keeping of "mistresses." Both converge the discursive imaginaries of corruption and illicit power relations around sexualized conduct that aligns with the use of ideologies of gender as a disciplinary amplifier of the taboo element (and thus the disciplinary legitimacy) of described acts and relations. Sex and politics are aligned within the ideological framework of Chinese Marxist-Leninism, as it is in other ideological political systems; one in which breach of sexual taboos can be understood as evidence not just of sexual but also of political corruption.

Beyond the usual language of power dynamics, the commodification of sexual relations, and its instrumentalization in ways that are taboo for purposes of adhering to idealized behavior norms among those subject to discipline, the discussion reveals some interesting gaps. First is the absence of explicit reference to sexual activity (in whatever form) other than male-female relations. Same sex relations may either merit special considerations, or it may be viewed as inherently corrupt depending on the circumstances.  Issues beyond that, now an important element in the conversation of other developed states--based on non-traditional gender expression--may still be beyond the radar (e.g., everything from drag to more gender fluid behaviors and relationships). Second, traditional gender roles appear to predominate.  The expectation appears to be that males keep female mistresses, in the traditional manner.  And thus the question for the disciplinary apparatus turns on the definition of the elements of the offense.  Still, the language could be understood in gender neutral ways. Thus it is likely that the provisions and its interpretations would apply to a female keeping a male "paramour," or a person "keeping" a same sex "mistress."Also interesting is the way in which prostitution is invoked. While normally that might seem an odd point to emphasize, the definition of prostitution may be elastic enough to include any single or targeted acts of quid pro quo behavior in which there is consent by both parties in exchange for things of value.  That seems to be the thrust of the analysis.

The posting appears below in its original Chinese along with a crude English language translation.

 

【重要】纪检监察办案中不正当性关系、包养、通奸、权色交易、钱色交易等的认定和区分

纪法指引 2023-11-13 21:02 Posted on 浙江

来源：“纪法指引”微信公众号综合整理。文章仅供参考，如需引用，请以正式文件为准。转载用作学习，如有问题请及时联系处理。

现行《中国共产党纪律处分条例》对于涉及不正当那女关系的问题在不同的纪律中进行了明确的规定，对党员领导干部在个人道德品行修养及管好家人方面提出了更高的要求，以下内容仅供参考：

第一方面：男女性关系失范问题

不正当性关系（属于生活纪律）：指的是性道德失范，就是通常所说的生活作风问题，是指有配偶者又同配偶以外的人发生性关系，或者双方均无配偶，但一方同时与多名异性存在性关系。包括利用职权、教养关系、从属关系或者其他相类似关系与他人发生性关系。

权色、钱色交易（属于廉洁纪律）：指不正当性关系带有利益交换，往往是通过本人职权或者职务上的影响为对方谋利而与之交易，一方以色，另一方通过权和钱谋取不正当利益。这种不正当的性关系，既违反了道德，还侵犯了党员干部的职务廉洁性，只要发生，无论是否造成不良影响，都要处分。

实践中，要注意区分党员干部涉嫌嫖娼、权色交易、钱色交易、与他人发生不正当性关系行为。

一是嫖娼与权色交易、钱色交易行为的区别。权色交易行为是指违纪行为人利用职权或职务影响为对方谋利而与之进行交易，即一方通过美色，一方通过权力，进行交易。钱色交易是指违纪行为人利用金钱与对方进行交易。嫖娼与权色交易、钱色交易行为的区别是对象是否具有特定性，即嫖娼是行为人与不特定对象发生的交易行为，权色交易、钱色交易是行为人与特定对象发生的交易行为。党员有嫖娼行为的，一律给予开除党籍处分。权色交易和钱色交易行为，情节严重的，给予开除党籍处分。

二是权色、钱色交易与和他人发生不正当性关系行为的区别。与他人发生不正当性关系违纪行为，必须同时具备三个条件：一是双方发生了不正当性关系；二是不正当性关系必须是双方基于自愿发生的，并且不以金钱、财物为媒介；三是造成了不良影响。与他人发生不正当性关系在表现形式上包括：双方均有配偶或者一方有配偶而自愿发生不正当性关系；以玩弄对方为目的，通过诱骗或其他手段与对方自愿发生性关系；同时交往多名对象，并分别与其保持不正当性关系等。权色交易、钱色交易与和他人发生不正当性关系行为的区别在于，双方是否存在交易行为，他们之间的行为是否以金钱、财物为媒介。一般情况下，钱色交易给予的财物都是价值较大的财产性利益，如房产、车辆、大额现金、股票等；如果仅给予一些价值不大的财物，如纪念品、土特产等，一般不宜认定为搞钱色交易行为。

第二方面：包养情妇与通奸问题

中央纪委法规室在《对湖南省纪委关于某某包养情妇错误请示函的答复》（中纪法函【2000】3号）中进一步明确指出：“包养情妇是指严重违反社会主义道德和社会公德，在一定时期内以为女方提供足够维持当地一般生活水平的日常生活费用为必要条件，与女方保持较稳定、较密切的不正当两性关系。其基本特征是：（1）在一定时期内，为女方提供足以维持当地一般生活水平的日常生活费用，是双方维持不正当两性关系的必要条件。（3）男女双方在一定时期内保持较稳定的、较秘密的不正当两性关系。”也就是说包养情妇须满足上述三个特征。此外，认定包养情妇案时还应注意以下问题：

一是合理区别包养与通奸行为。通奸与包养两种行为的相同之处在于均系已婚有配偶者自愿与配偶以外的异性发生性关系。两者主要区别是：通奸不以为对方提供钱财、住所等生活资料为前提，而包养情妇行为则必须以为对方提供钱财、住宿等基本生活费用为条件。

二是包养行为对包养者提供的生活费用规定了下限。即“足够维持当地一般生活水平”，但对被包养对象的经济情况并未做出限定。现实生活中，被包养对象的情况千差万别，有的是为满足基本生存而被包养，有的是为了追求更高层次的物质享受而被包养。因此，即便被包养对象有固定收入甚至能维持生活也并不影响对包养行为的认定。无论被包养对象是否有收入来源，只要包养人为被包养对象提供了足够维持当地一般生活水平的日常费用，且提供日常生活费用是双方维持不正当两性关系的必要条件，就属于包养行为。

此外，实践中，确定包养双方发生性关系这一要件应结合案件全面来看。

 

[Important] Identification and differentiation of inappropriate sexual relations, support, adultery, power and sex transactions, money and sex transactions and other behaviors in disciplinary inspection and supervision cases
Disciplinary Guidelines Published in Zhejiang on 2023-11-13 21:02
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Source: Comprehensive compilation of "Discipline and Law Guidelines" WeChat public account. The article is for reference only. If you need to quote, please refer to the official documentation. Reprinting is for learning. If you have any questions, please contact us in time.


The current "Regulations on Disciplinary Punishments of the Communist Party of China" clearly stipulates issues involving inappropriate relationships with women in different disciplines, and puts forward higher requirements for party members and leading cadres in terms of personal morality and good family management, as follows. Content is for reference only:


Point 1: The issue of anomie in sexual relations between men and women


Improper sexual relations (belonging to life discipline): refers to sexual disorders, which are commonly known as lifestyle problems. It refers to a person who has a spouse and has sexual relations with someone other than the spouse, or neither party has a spouse, but one party has a spouse at the same time. Having sex with multiple people of the opposite sex. This includes using authority, nurturing relationships, affiliations, or other similar relationships to have sexual intercourse with another person.


Transactions of power, sex, and wealth (belonging to the discipline of integrity): refers to improper sexual relationships for the purpose of benefit exchange, often seeking benefits for the other party through the influence of one's own power or status. One party uses sex, and the other party uses power and money to seek improper benefits. This kind of improper sexual relationship not only violates morality, but also violates the public ethics of party members and cadres. As long as it happens, regardless of whether it causes adverse effects, it must be punished.


In practice, attention should be paid to distinguishing party members and cadres suspected of prostitution, power and sex transactions, money transactions, and improper sexual relations with others.


The first is the difference between prostitution, the transaction of power and sex, and the transaction of money and sex. Power and sex trading behavior refers to disciplinary offenders using their power or positional influence to trade with the other party, that is, one party uses beauty and the other party uses power to trade. Money and sex transactions refer to the use of money for transactions between disciplinary offenders. The difference between prostitution, power and sex trading, and money and sex trading lies in whether the object is specific, that is, prostitution is a transaction between the perpetrator and an unspecified object, while power and sex trading and money and sex trading are the relationship between the transaction actor and a specific object. . Party members who engage in prostitution will be expelled from the party. Those who engage in power-sex trading or money-sex trading, if the circumstances are serious, will be expelled from the party.


The second is the difference between power, sex, and money transactions and improper sexual relations with others. To have improper sexual relations with others or violate discipline, three conditions must be met at the same time: first, both parties have an improper sexual relationship; second, the improper sexual relations must be voluntary by both parties, and money or property must not be used as a medium; third, cause adverse effects. Symptoms of improper sexual relations with others include: both parties have spouses or one spouse has a spouse and voluntarily have improper sexual relations; voluntarily having sexual relations with the other party through deception or other means for the purpose of toying with the other party; having multiple contacts at the same time Name the objects and maintain inappropriate sexual relations with them respectively. The difference between power-based transactions, monetary transactions, and improper sexual relations with others lies in whether there is transaction behavior between the two parties, and whether the behavior between them is mediated by money or property. Under normal circumstances, the property given in money and sex transactions are property rights of relatively large value, such as real estate, vehicles, large amounts of cash, stocks, etc.; if only some less valuable property, such as souvenirs, souvenirs, etc., are given away, it is generally not acceptable. Should be considered to be involved in the transaction of money and sex.


Aspect Two: Keeping Mistresses and Adultery


The Central Commission for Discipline Inspection and the Ministry of Supervision further stated clearly in the "Reply to the Hunan Provincial Commission for Discipline Inspection" "Request for Instructions About Someone's Wrong Keeping a Mistress" (Zhongji Fahan [2000] No. 3): "Keeping a mistress is a serious violation of socialist morality and social ethics. During the course of that relationship, it is necessary to provide the woman with daily living expenses sufficient to maintain the general living standards of the local area, in order to maintain a relatively stable illicit sexual relationship with the woman. Its basic characteristics are: (1) during the course of the relationship, provide the woman with daily expenses sufficient to maintain the local general living standards, (2) that payment is a necessary condition for both parties to maintain the improper sexual relationship, (3) Both men and women maintain a relatively stable and secret improper sexual relationship over a material period of time." In other words, the mistress must meet the above three characteristics. In addition, when identifying a case of keeping a mistress, you should also pay attention to the following issues:


The first is to reasonably distinguish between parenting and adultery. Adultery is similar to foster care in that a married person with a spouse voluntarily has sex with someone of the opposite sex other than their spouse. The main difference between the two is that the act of adultery is not predicated on the other party providing basic living expenses such as money and accommodation, while the act of keeping a mistress must be predicated on the other party providing basic living expenses such as money and accommodation.


Secondly, the act of foster care sets a lower limit on the living expenses provided by caregivers. That is, "sufficient to maintain the general living standards of the local area", but there is no limit on the financial status of the recipients. In real life, foster care recipients' situations vary widely. Some are to meet basic survival needs, and some are to pursue higher levels of material enjoyment. Therefore, even if the foster person has a fixed income and can even make a living, it does not affect the determination of the foster care behavior. Regardless of whether the foster care recipient has a source of income, as long as the foster care provider provides the foster care recipient with daily expenses sufficient to maintain the general living standards of the local area, and providing daily expenses is a necessary condition for both parties, maintaining an inappropriate sexual relationship is an act of parenting.


In addition, in practice, the factors that determine the sexual relationship between the secured parties should be considered in light of the overall circumstances of the case.