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[Lawyer’s Perspective] All About Commercial Opportunity-Based Bribery in Official Crime Cases

A few days ago, I attended a rule-of-law forum on the criminal governance of bribery offenses. The forum featured high-quality discussions on several new types of covert bribery crimes. In particular, the issue of opportunity-based bribery drew intense and even heated exchanges among renowned scholars and practitioners who participated in the forum—exchanges that left a deep impression. While there was some consensus on certain issues, significant—and sometimes substantial—disagreements also emerged. As a result, I’ve been prompted to reflect anew on this topic. Overall, I believe it’s quite challenging to establish the existence of opportunity-based bribery. The current view held by practitioners—that such bribery can indeed be established—faces numerous theoretical and logical obstacles.

[Case-Based Legal Explanation] Can employees claim overtime pay if the company schedules them to work on weekends?

Using a case as an example: If a company schedules employees to work on weekends, can they claim overtime pay?

[Lawyer’s Perspective] Practical Dilemmas in the Determination of Self-Surrender as an Aggravating Factor in Official Corruption Crimes

As the fight against corruption continues to deepen, the number of official misconduct cases—primarily involving bribery offenses—remains on a fairly rapid upward trajectory. At the same time, the amounts involved in these official misconduct cases keep shattering previous perceptions. Under the current judicial interpretation, which stipulates that embezzlement and bribery amounts exceeding 3 million yuan will result in a sentence of more than ten years’ imprisonment, whether the defendant can have their legal liability reduced and receive a lighter sentence often hinges on whether they qualify for the self-surrender and meritorious service provisions set forth in Articles 67 and 68 of the Criminal Law—these provisions frequently become the defendant’s last “lifeline.” However, in judicial practice, due to inconsistencies in judicial philosophies and differences in evidence-gathering approaches, the determination of self-surrender circumstances often becomes a contentious and difficult issue throughout the course of case handling. Drawing on common problems encountered in judicial practice, the author examines the current practical challenges in identifying self-surrender circumstances in official misconduct cases, thereby calling for the consolidation of consensus within judicial practice.

[Lawyer’s Perspective] A Comparative Legal Examination of the Miranda Rule

The Miranda Rule, born out of the Miranda case in Arizona, USA, in the 1960s, has had a profound impact on the history of law. In essence, the Miranda Rule brought to public attention—through a sensationalized approach—the suspect’s right to remain silent and the right to have an attorney present (the right to legal counsel)—leaving an indelible impression on everyone. Although some countries’ laws had already addressed the rights to silence and to counsel prior to this, it was the Miranda Rule that explicitly required that these rights be clearly and unmistakably informed to the suspect; otherwise, the procedure would be deemed unlawful. In fact, the Miranda Rule is not unfamiliar to the general public. We often see it portrayed in movies and TV shows—particularly in Hong Kong dramas—where officers frequently say during arrests: “You have the right to remain silent, but everything you say may be used against you in court.” That’s precisely the Miranda Rule (also known as the Miranda Warning)—though the full text of the Miranda Rule encompasses much more than just this brief statement.

[Lawyer’s Perspective] A Further Discussion on the Issue of Falsely Inflating Project Quantities in Official Crime Cases

Several months ago, I wrote an article on the issue of inflated project quantities in official misconduct cases, and since then, I’ve been continuously reflecting on this problem. Recently, I’ve handled two more cases that share certain similarities. In particular, I’ve recently discussed this issue with various investigators and gained insight into their perspectives and attitudes toward such cases. These factors have led me to suspect that the practice of inflating project quantities in the construction engineering sector may not just be an isolated phenomenon but could instead be taking on a broader, more widespread trend. This naturally brings to mind another similar situation: interest derived from genuine principal loans has, at first, been identified as bribery involving officials—but over time, what began as isolated cases has gradually evolved into a widespread practice. Consequently, I can’t help but feel concerned about the issue of inflated project quantities in official misconduct cases: Are these merely isolated incidents with regional characteristics, or will they continue to expand? Therefore, I’ve decided to revisit this issue once again, to examine more carefully just what the nature of inflated project quantities in the construction engineering sector really is—and whether it truly constitutes a crime. This article builds upon my previous piece, adding some new perspectives along the way.

[Lawyer’s Perspective] If a construction project has quality issues, does the actual contractor necessarily lose the right to claim payment for the project?

The right of the actual contractor to claim payment for the project work is derived from Article 793, Paragraph 1 of the Civil Code of the People’s Republic of China and Article 24 of the Supreme People’s Court’s Interpretation (I) on the Application of Laws in Handling Disputes over Construction Project Contracting Contracts. Both provisions stipulate that such right is contingent upon the “construction project having passed acceptance inspection.” Consequently, in practice, it is common for the project owner or the contractor to raise the defense that “the project constructed by the actual contractor has quality problems,” thereby challenging the actual contractor’s right to payment. This often gives rise to disputes: If a project has quality problems, does the actual contractor necessarily lose his or her right to claim payment for the project work?