Can 'economically valuable information' become 'property' in the crime of bribery
2025-08-08
Recently, the author discussed a case with a friend: Employee B of a certain enterprise has a friendly relationship with employee A of the state, and the two have work intersections. Employee A has an impact on and takes care of Employee B's work. One day, B revealed to A that A's stock was about to rise significantly and recommended A to invest. Although A was initially not interested in it, with B's strong persuasion, A eventually purchased A stock, which appreciated significantly. A made a profit of over 5 million yuan by selling the stock. Houjia was reported for accepting bribes. The controversial point in this case is whether the "information" or "valuable information" that can bring economic benefits, such as "A stock will rise", can be evaluated as property (property interest) in the constitutive elements of bribery. To determine whether A constitutes bribery in this case, it is necessary to deeply interpret the provisions of China's criminal law and relevant judicial interpretations. Article 385 of the Criminal Law of the People's Republic of China stipulates that state officials who take advantage of their positions to solicit property from others, or illegally accept property from others to seek benefits for others, are guilty of bribery. State officials who violate national regulations in economic transactions by accepting kickbacks and handling fees under various pretexts, which belong to individuals, shall be punished for accepting bribes. Article 12 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery" (hereinafter referred to as the "Corruption and Bribery Interpretation") in 2016 stipulates that "property" in bribery crimes includes currency, goods, and property interests. Property benefits include material benefits that can be converted into currency, such as house decoration and debt relief, as well as other benefits that require payment in currency, such as membership services and tourism. The criminal amount of the latter shall be calculated based on the actual or payable amount. From the above regulations, it can be seen that the core elements required to constitute the crime of bribery are as follows: firstly, the subject element: the identity of a state functionary. Secondly, objective behavioral requirements: taking advantage of one's position to solicit property from others, or illegally accepting property from others. Thirdly, subjective element: direct intent. One question is whether Party A is aware that the giving of property by others is based on their own official behavior, and whether there is a consideration relationship between receiving property and official behavior. The second is whether Party A wishes or allows (implicitly accepts) others to seek benefits through their official actions. Fourth, consideration relationship: seeking benefits for others. It covers both legitimate and illegal interests, including not only the benefits already obtained, but also the promised, implied, or expected benefits that may be realized in the future. There may be a correlation between "before", "during", or "after" the time span for seeking benefits (such as "taking bribes after the fact" still constituting a crime). Fifthly, property (property interests) is the core element for convicting and sentencing bribery crimes. In the era of information, the concept that information has economic value has been widely recognized. However, to identify "information with economic value" as bribery property, it must comply with the legal characteristics of property (property interests). The provisions on information crimes in China's criminal law cover various types of crimes and multiple charges, including the crimes of illegal disclosure and non disclosure of important information, theft, purchase, and illegal provision of credit card information, insider trading and leakage of insider information, trading using undisclosed information, fabricating and disseminating false information in securities and futures trading, and infringing on trade secrets. The number of these cases has been increasing year by year, involving a large number of charges. Among these charges, the role of information in the composition of the crime is mainly reflected in the following three aspects: firstly, the elements of conviction. Those who promote terrorism, extremism, and incite the implementation of terrorist activities, produce and distribute books, audio and video materials, and other items that promote terrorism and extremism, or promote terrorism and extremism through lectures, information dissemination, and other means, as well as incite the implementation of terrorist activities, will be severely punished by law, including imprisonment for up to five years, detention, surveillance, or deprivation of political rights, and will be fined; Those with serious circumstances will face imprisonment for more than five years, as well as fines or confiscation of property. Terrorism information is a prerequisite for conviction here. The second is the criteria for sentencing. For example, the sentencing standards for the crime of infringing on citizens' personal information, according to Article 5 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Citizens' Personal Information issued by the Supreme People's Court and the Supreme People's Procuratorate, will face varying degrees of legal consequences in different situations such as illegally obtaining, selling, or providing citizens' personal information for more than 50, 500, or 5000 articles. The third is to combine the functions of conviction and sentencing. As stipulated in Article 219 of the Criminal Law for the crime of infringing on trade secrets, trade secrets are both a requirement for conviction and a basis for sentencing. According to the Decision of the Supreme People's Procuratorate and the Ministry of Public Security on Amending the Standards for Filing and Prosecuting Criminal Cases Involving Infringement of Trade Secrets on September 17, 2020, those who infringe on trade secrets and are suspected of any of the following circumstances should be prosecuted: causing losses of more than 300000 yuan to the right holder of trade secrets; Obtaining illegal gains of over 300000 yuan due to infringement of trade secrets; Directly leading to the bankruptcy or closure of the rights holder of trade secrets due to significant business difficulties; Other situations that cause significant losses to trade secret rights holders. The regulation of information crimes in China's criminal law has formed a relatively complete system, but with the development of technology, new forms of crimes continue to emerge. In the digital age, it is necessary to further clarify the boundaries and applicable rules of information crimes, which involve the status of information in the entire criminal justice system - the role of information varies in different charges, such as the core element of information in the crime of infringing on trade secrets; In the crime of insider trading, the economic value of information is crucial; Some charges involve information that is the object of the crime, some are tools of the crime, and some are conditions for conviction or sentencing circumstances, with specific functions varying depending on the crime. The legal evaluation of "economically valuable information" in the crime of bribery depends on whether it has the characteristics of property interests in the legal sense. As a legal concept, the core characteristics of "property (property interests)" need to be comprehensively defined from multiple dimensions such as civil law, criminal law, and economic law, and should have the following characteristics: firstly, it has economic value. Items without economic value cannot be called "property" because they lack the nature of wealth and are not considered as bribery property in criminal law; The second is that economic value can be evaluated and quantified specifically. The bribery property (property benefits) must be quantifiable, as the sentencing standards for bribery crimes are closely linked to the amount. For unquantifiable benefits such as sexual bribery and emotional support, it is difficult to clarify their nature and sentencing in judicial practice, but these behaviors may constitute other disciplinary or criminal acts; Thirdly, the ownership of the property itself is clear and transferable. According to the constituent elements of the crime of bribery, the property should belong to the briber before the bribe is given, and after the bribe is given, it belongs to the briber. The briber gains actual control or control over the benefits. Even if the legal registration procedures have not been completed, such as accepting untransferred property or holding equity on behalf of others, it does not affect the determination of bribery; Fourthly, it has exclusivity and exclusivity, and cannot be shared. Examples include specific parking space usage rights, exclusive membership qualifications, etc. Information with economic value has the legal characteristics of "property" (property interests). Mainly reflected in the following aspects: firstly, economic value. The value of information has been widely recognized, and "economically valuable information" has quantifiable economic value, which can be determined through market transactions, professional evaluations, and judicial judgments to determine its specific monetary value; Secondly, clarity of ownership. Most information with economic value has clear rights holders and can be possessed, used, profited from, and disposed of by specific entities. Such as insider trading information and trade secrets, which are limited to specific entities; Thirdly, exclusivity and dominance. Information with economic value can be effectively controlled by the rights holder, excluding illegal interference from others. Obtaining and possessing it by unqualified subjects can lead to illegal or even criminal activities, such as the crime of illegally obtaining state secrets and military secrets; Fourthly, 'economically valuable information' can transfer ownership through legal actions such as buying, selling, or gifting, such as virtual currency. The value of "economically valuable information" has formed a general quantitative standard in judicial practice. The following examples are given from the perspective of information categories: firstly, illegal transactions of personal information. In May 2018, the actual operator of a certain network technology company, Cai, conspired with Yin to purchase personal information of citizens containing phone numbers, login platform names, and login times from an upstream software company through the company, and then resold it to Yin at a price of 0.35 yuan or 0.5 yuan per piece. Cai assigned employees Liu and Li to be specifically responsible for information buying and selling business. As of the time of the incident, a total of 741238 pieces of personal information of citizens were sold, with a profit of approximately 500000 yuan. The main culprit Cai was sentenced to 3 years and 8 months in prison and fined 800000 yuan by the company. Secondly, there is infringement of trade secrets. For example, in some cases of infringement of trade secrets in judicial practice, the types of information infringement, transaction methods, and legal consequences have been determined in the form of court judgments. Thirdly, abuse of job information. Zhang, an employee of a certain market supervision and management office, sold the registered name, business scope and other information of the enterprise that he had obtained by taking advantage of his position (which has not yet been disclosed to the public), and made a profit of RMB 149579.60. The defendant Zhang was sentenced to three years' imprisonment, suspended for four years, and fined RMB 150000. Fourth, information trading in emerging fields. For example, money laundering cases using virtual currencies. Information related cases have formed widely adopted and recognized judicial rules after a certain period of judicial practice. In terms of determining the value of information, the following methods are mainly used: direct income method (based on actual profits, such as insider trading cases); Market analogy method (referring to similar information transaction prices, such as trade secret licensing fees); Cost reset method (based on R&D investment and maintenance costs, such as cases of loss of technical secrets), etc. In terms of sentencing considerations, the main factors include: information sensitivity (such as trajectory information being more important for sentencing than ordinary identity information); Transaction scale (such as 741238 pieces of information identified as "particularly serious circumstances" in the above-mentioned case of illegal personal information trading); Social harm (such as increased punishment for personal information being used for telecommunications fraud), etc. In principle, for information related cases, a cross disciplinary approach of civil and criminal law is generally adopted, with civil compensation and criminal fines in parallel. There is still a disagreement in legal practice regarding whether "information with economic value" constitutes "property". After all, information is different from traditional physical objects or money, and its value largely depends on the specific context and application method. For example, according to court rulings, if someone uses their position to obtain insider information and provides it to others in exchange for benefits, such behavior may involve both insider trading and bribery crimes. The application of different charges reflects a divergent understanding of whether such information is directly equivalent to 'property' or merely a manifestation of interests. Can 'economically valuable information' become a subject of interest
Edit:Wang Shu Ying Responsible editor:Li Jie
Source:Law Daily·Legal Weekly
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