Government officials who have received bribes still have a last chance to save themselves. From last year a few Chinese cities, including Ningbo and Wenzhou in Zhejiang Province, Jinzhou in Liaoning Province and Jinan in Shandong Province, have opened the "581" or "anti-corruption account," where officials may anonymously deposit money equivalent to the bribes they have accepted (which may have been cash, presents or securities) within a given time, and get receipts that accord them certain immunity. With these receipts, the officials may be treated the same way as those who have rejected bribes, if they are investigated in the future for bribery.
The "581" account in Wenzhou received deposits totaling more than 400,000 yuan by April. By the end of May, the figure rose sharply to 1.1 million yuan after the issuance of a local government decree stating that bribes should be deposited into the account within a given time.
Yet, many legal experts are skeptical about the practice, which they said lacks a legal basis and is inconsistent with, or even contradictory to, current criminal laws. They believe that the practice is virtually a manifestation of "ruling society by men," which conflicts with the more democratic concept of "ruling society by law." However, others are convinced that this is a very positive measure that will promote social advancement.
A Questionable Solution
Li Dun (professor of the Modern China Research Center of Tsinghua University): I think such a phenomenon is really something very sad. The account has virtually institutionalized the practice of trading bribe money for innocence. So how shall we look at its relationship with our basic laws and legal concepts? And what kind of impact will it have on our civil servants? There are really lots of issues to be considered.
Chen Aihe (from Prosecutor Daily): An incorruptible official will absolutely be able to reject gifts and bribe money in the face of the briber, or directly hand over the bribes to local commissions for disciplinary inspection, or to local prosecutorates. They don't need the protection of "no need to give their name or their work unit or to report to their superiors" at all. For the corrupt officials, however, the "anti-corruption account" has given them a "fig leaf" or an excuse-they have been forced to take the bribes because it has been difficult and inconvenient for them to refuse them. In addition, it has also provided them an "umbrella"-once they sense they might soon get into trouble, they may just give the money they have accepted, depositing some money into the "anti-corruption account" prior to the investigation. By doing this, they will be considered innocent and thereby avert punishment. If this is so, corrupt officials will be let off too easily.
According to Article 389 of the Criminal Law, State functionaries are guilty of taking bribes if they take advantage of their positions to ask for or accept money and property from people soliciting favors from them. In the legal sense, people who deposit bribe money into the account long after they have accepted it, instead of immediately after, have actually completed the process of taking bribes. Such behavior already constitutes a crime. In Criminal Law, there is no stipulation that those who have received bribes will be pardoned if they dispose of the bribes after a given time. In addition, Article 389 of the Criminal Law also stipulates that people who give State functionaries money and property with the aim of obtaining illegitimate benefits have committed the crime of bribery. If the gifts and bribe money are turned over to the "anti-corruption account," the bribers are actually protected in a disguised way, too. This obviously goes against the law on cracking down on bribery.
The implementation of any measures and policies should be carried out within the legal limits. The voluntary return of bribes after a given time, though a positive gesture made by the bribed, cannot obliterate the fact of their guilt. As our anti-corruption efforts intensify, we should not keep lowering the standards for the probity of government officials and appease those guilty of bribery. Only iron-fist rule by law can produce a strong enough deterrent, and the "anti-corruption account" is the last thing to be encouraged.
Han Yaoyuan (Director of the Department of Law Application Research under the Legal Policy Research Center of the Supreme People's Procuratorate): The "581" account targets only the corrupt and greedy officials who have extracted and accepted bribes, instead of the really clean and honest ones. Given this, the account might provide itself as an excuse or means for some foxy corrupt officials to dodge investigations against them.
Say, for instance, that five people have given me a total of 100,000 yuan as a bribe, and I merely deposit 50,000 yuan into the "581" account. When the corruption investigators come for me with evidence proving that I have taken 40,000 yuan in bribes, I may tell them that I have already deposited the money into the "anti-corruption account" and therefore I am immune from the charges of taking bribes. Given this, the account may serve as a shield for corrupt officials. Combined with a little legal knowledge, it will make it very easy for corrupt officials to avoid and resist investigation against them, thereby avoiding the legal punishments they deserve.
Xie Wangyuan (post doctorate researcher and professor of criminal law from the Law School of the Renmin University of China): The "anti-corruption account" should be regarded as positive under the current circumstances of our country. It provides a channel for the bribe takers to save themselves. However, such practices still need more legal support from the law. Given this, I think the "anti-corruption account" is merely an alternative measure and a short-term fix aiming at creating a positive atmosphere for the building of a clean government.
A Positive Act
Chen Xingliang (professor of the Law School of Peking University): The "anti-corruption account" system is an invention by local commissions of discipline inspection. Although it lacks a legal basis, it doesn't contradict current laws. The fight against corruption can be conducted in varying ways. I prefer to define the "581" account as one of the passive anti-corruption measures. I agree with the view that anything capable of preventing corruption is good and should not be shunned. In this sense, we should affirm the positive role of the "anti-corruption account" in fighting corruption.
The implementation of laws can be flexible. During a certain period of time, the policy on the implementation of the Criminal Law can be adjusted in accordance with particular needs of the time. In other words, a temporary lenity may be applied during a certain period of time, which shall not be regarded as a violation of the current laws.
The emergence of the "anti-corruption account" system is associated with the prevalence of corruption in society. For corruption, we should penalize behavior that already constitutes a crime in accordance with the law. But for behavior that falls short of being crimes, we should just punish them in accordance with Party disciplines and administrative regulations. In the meantime, we should encourage our civil servants to resist the temptation of bribes.
However, it seems that it is still quite difficult for people to reject bribes directly. For some people, depositing the bribe money into the "anti-corruption account" may mentally relieve them. In this sense, the account is positive when there are no other alternatives.
While the role of the account in preventing and reducing corruption should not be exaggerated, the account should not be regarded as a means to protect corruption or be responsible for the increase of corruption, either. Some people might say that such an account will help corrupt officials avoid punishment. But actually many corrupt officials will not be punished anyway, even if they keep the bribe money. Given this, it is better to let them turn in the money than not to. Furthermore, this is a low-cost measure for anti-corruption, so why shouldn't we do it?
Some say bribery has become so serious in China that it has exceeded the bottom line of professional ethics. But I think the standard for guilt varies in different societies and countries. In Singapore, for instance, taking 200 Singapore dollars from others might constitute a crime. The prevalence of corruption in China is also related to our culture and tradition. China is a society which pays much attention to building human relationships through giving and returning favors. Therefore it is very hard to judge the Chinese officials in accordance with Western standards for probity.
Although the "581" account is unable to eliminate corruption, it lets officials who have accepted bribes return at least some of the money. For those who have returned money, I think the possibility is very slim for them to accept bribes again since it doesn't make sense for them to take what they will return anyway. In this sense, the account will help them establish incorruptibility gradually. As long as the practice helps to eradicate corruption and build a clean government, I will think it is reasonable and should be allowed to exist.
Liu Xinghong (a lawyer from the Beijing Beige Law Firm): I don't think the "anti-corruption account" contradicts the law. For various reasons, some officials might not be able to return the gifts and money the bribers give. And it is also inconvenient for them to turn over the bribes to their superiors. Under such circumstances, they might choose to resolve the dilemma through the account. Compared with the act of hiding and taking possession of the bribes, returning the bribes represents certain progress.
Zhu Ping (a judge from the Beijing Higher People's Court): The "581" account is a supervisory system, instead of a legal or judicial system. In essence, the system is a kind of internal supervision over officials by the Party and administrative agencies. The judicial system, on the other hand, is a kind of external supervision imposed by the court and prosecuting departments. In addition, the two systems are complementary to some extent. Given this, we should recognize the rationality for setting up such a system.
(Beijing Review 08/23/2001)
