Copyright 2012 by Stanford University

YANG Yanhu et al.,

A Graft Case

Guiding Case No. 11

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court

Released on September 18, 2012)

CHINA GUIDING CASES PROJECT

English Guiding Case (EGC11)

November 9, 2012 Edition*

* The citation of this translation of the Guiding Case is: 《杨延虎等贪污案》(YANG Yanhu et al., A Graft

Case), CHINA GUIDING CASES PROJECT, English Guiding Case (EGC11), Nov. 9, 2012 Edition, available at

http://cgc.law.stanford.edu/guiding-cases/guiding-case-11.

This document was primarily prepared by LI Hui, Lisa Lin, Christine Qingyu Liu, Jeremy Schlosser, Joelle

Tjahjadi, Randy Wu, and Christina Zhao. The document was finalized by Dimitri Phillips and Dr. Mei Gechlik.

Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the

headings to correspond with those boldfaced in the original Chinese version, was done to make the piece more

comprehensible to readers. The following text, otherwise, is a direct translation of the original text and reflects

formatting of the Chinese document released by the Supreme People’s Court.

The following Guiding Case was discussed and passed by the Adjudication Committee of the Supreme

People’s Court of the People’s Republic of China and was released on September 18, 2012 available at

http://www.chinacourt.org/law/detail/2012/09/id/145946.shtml. See also 《最高人民法院关于发布第三批指导

性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the Third Batch of Guiding

Cases), Sept. 18, 2015, available at http://www.chinacourt.org/law/detail/2012/09/id/145946.shtml.

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Keywords

Criminal Crime of Graft Conveniences of Office

Fraudulently Acquire Land Use Rights

Main Points of the Adjudication

1. In the crime of graft, “taking advantage of the conveniences of one’s office” refers to

taking advantage of the power and convenient conditions of one’s office to be in charge of, to

manage, and to handle public property. It includes not only taking advantage of the

conveniences of one’s office to be in charge of and to manage public property, but also taking

advantage of the conveniences of the offices of other state functionaries who, in relation to [the

official’s] office, are in a subordinate relationship [to the official].

2. Land-use rights carry property interests, are within the scope of “public property”

under Article 382, Paragraph 1 of the Criminal Law, and can become an object of graft.

Related Legal Rule(s)

Article 382, Paragraph 1 of the Criminal Law of the People’s Republic of China

Basic Facts of the Case

Defendant YANG Yanhu (杨延虎) served as a member of the Standing Committee of the

CPC Yiwu Municipal Committee, Zhejiang Province in August 1996, and served as Deputy

Director of the Standing Committee of the People’s Congress of Yiwu Municipality in March

2003. In August 2000, he also served as Deputy Group Leader for the Construction Leadership

Group of the Futian Market of the China Small-Commodity City (name changed in March 2003

to the China Yiwu International Trade City; hereinafter referred to as the “International Trade

City”) and as General Director for the [Construction] Directorate of the Futian Market, presiding

over the overall work of the Directorate.

In 2002, after YANG Yanhu learned that Gonghe Village, in the Choucheng

Neighborhood of Yiwu Municipality, would be included in the scope of the demolition,

relocation, and old village renovation, he decided to purchase an old home in that village and

take advantage of the conveniences of his office to fraudulently obtain illegal benefits during the

demolition, relocation, and resettlement. YANG Yanhu then conspired with defendants WANG

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Yuefang (王月芳) (the younger sister of YANG Yanhu’s wife) and ZHENG Xinchao (郑新潮)

(WANG Yuefang’s husband), and had WANG and ZHENG personally buy, through a certain

WANG from Gonghe Village, an old three-room home in that village from a certain ZHAO in

WANG Yuefang’s name. (A property ownership certificate issued on August 3, 1998 listed the

area as 61.87 square meters.)

According to the demolition, relocation, and old village renovation policies in that area,

ZHAO would receive the same amount of resettlement land regardless of whether he owned that

old home; in fact, ZHAO received land resettlement as a household without home ownership.

In March and April of 2003, in order to confirm WANG Yuefang’s right to the land occupied by

the old three-room home, ZHENG Xinchao, under the direction and by arrangement of YANG

Yanhu, once again went through WANG of Gonghe Village to ask the villagers’ committee of

that village and its members to issue a false certificate certifying that that old three-room home

was built by WANG Yuefang in 1983. YANG Yanhu took advantage of the conveniences of his

office, demanding of a certain WU, who served as the Deputy General Director in charge of land

rights confirmation work for the Construction Directorate of the International Trade City [and]

Deputy Director of the State Land Resources Bureau of Yiwu Municipality, and of other

personnel of the Rights Confirmation and Approval Division of the Directorate, to take care of

WANG Yuefang during the demolition, relocation, resettlement, and land rights confirmation.

The Construction Directorate of the International Trade City thereupon performed a rights

confirmation audit of the home purchased by WANG Yuefang, treating it as an old home certified

by the village but not accompanied by a certificate of title, reported to the State Land Resources

Bureau of Yiwu Municipality for rights confirmation, and confirmed that [the home] occupied a

land area of 64.7 square meters according to the measurement result.

Thereafter, defendants YANG Yanhu, ZHENG Xinchao, and WANG Yuefang conspired.

On the basis that WANG Mouxiang, YANG’s father-in-law, could receive confirmed land rights

to 25.5 square meters of land during the demolition and relocation of Gonghe Village, they

fabricated in January 2005 an application report signed by WANG Yuefang et al., claiming

falsely that:

WANG Mouxiang and WANG Yuefang jointly owned a home with three and a

half rooms occupying an area of 90.2 square meters. The two divided up the

property in 1986, with WANG Mouxiang receiving 36.1 square meters and

WANG Yuefang receiving 54.1 square meters. The relevant department

confirmed in error that WANG Mouxiang had a home of 25.5 square meters and

that WANG Yuefang had a home of 64 square meters.

[They] demanded that the State Land Resources Bureau of Yiwu Municipality make corrections.

Afterwards, YANG Yanhu took advantage of the conveniences of his office to direct the

personnel of the Construction Directorate of the International Trade City to seal and confirm the

application report in the name of that group, and have the application report receive the approval

of the State Land Resources Bureau of Yiwu Municipality and the Yiwu Municipal Government.

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This, therefore, allowed WANG Yuefang and WANG Mouxiang to receive approval for

construction land with areas of 72 square meters and 54 square meters (totaling 126 square

meters), respectively. According to WANG Mouxiang’s land rights confirmation, he should

only have received approval for 36 square meters of construction land, [and] the other 90 square

meters were acquired illegally. In May 2005, after spending RMB 245,520 on location

selection fees, YANG Yanhu et al. received two shops in the demolition, relocation and

resettlement zone of the International Trade City with a land area of 72 square meters as

demolition, relocation, and resettlement compensation (after this case was exposed, land-use

rights for those 72 square meters of land were frozen in accordance with law). Prior to being

used as resettlement land, that area of land had already been expropriated by the state and

converted to construction land and was state-allocated land. An evaluation determined that the

value of the land-use rights was RMB 35,270 per square meter. The 90 square meters of

construction land acquired illegally by YANG Yanhu et al., in accordance with demolition,

relocation, and resettlement regulations in that area, amounted to the 72 square meters land area

of the shops in the demolition, relocation and resettlement zone, valued at RMB 2,539,440.

After deducting the RMB 245,520 paid by YANG et al., the real [value of the] illegal acquisition

was RMB 2,293,920.

In addition, from 2001 to 2007, defendant YANG Yanhu took advantage of the

conveniences of office to seek benefits through helping others to contract construction projects,

[to engage in] demolition, relocation, and resettlement, [and to] transfer state-owned land. In

total, he illegally accepted or demanded RMB 570,000, of which RMB 50,000 were bribes

demanded.

Results of the Adjudication

On December 15, 2008, the Intermediate People’s Court of Jinhua Municipality, Zhejiang

Province, rendered the (2008) Jin Zhong Xing Er Chu Zi No. 30 Criminal Judgment:

1. Defendant YANG Yanhu is guilty of the crime of graft and sentenced to 15 years of

fixed-term imprisonment and RMB 200,000 of his property is confiscated; [YANG is also]

guilty of the crime of accepting bribes and sentenced to 11 years of fixed-term

imprisonment and RMB 100,000 of his property is confiscated; [the court] decides to

enforce a fixed-term imprisonment of 18 years and to confiscate property of RMB

300,000.

2. Defendant ZHENG Xinchao is guilty of the crime of graft and sentenced to five

years of fixed-term imprisonment.

3. Defendant WANG Yuefang is guilty of the crime of graft and sentenced to three

years of fixed-term imprisonment.

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After the judgment was pronounced, all three defendants appealed. On March 16, 2009,

the Higher People’s Court of Zhejiang Province rendered the (2009) Zhe Xing Er Zhong Zi No.

34 Criminal Ruling to reject the appeal and uphold the original judgment.

Reasons for the Adjudication

In the effective judgment, the Court opined:1 With respect to the defense views put

forward by defendant YANG Yanhu’s defender that YANG Yanhu did not take advantage of the

conveniences of office.2 According to investigation, the Directorate of the International Trade

City of Yiwu was an institution established by the Yiwu Municipal Committee and the [Yiwu]

Municipal Government to ensure the smooth implementation of construction projects in the

International Trade City. The Land Rights Confirmation and Approval Division was

established under the Directorate, and [its] personnel were transferred from the State Land

Resources Bureau. The [Division] was in charge of the confirmation of land rights, as well as

the approval and reporting work regarding land for building houses or construction. WU, the

Deputy General Director of that division, was also the Deputy Director of the State Land

Resources Bureau. The Rights Confirmation and Approval Division was a subsidiary body of

the Directorate, and at the same time was under the leadership of the Directorate. As the

General Director of the Directorate, YANG Yanhu had leadership authority over this division.

In the crime of graft, “taking advantage of the conveniences of office” refers to taking advantage

of the power and convenient conditions of one’s office to be in charge of, to manage, and to

handle public property. It includes not only taking advantage of the conveniences of one’s

office to be in charge of and to manage public property, but also taking advantage of the

conveniences of the offices of other state functionaries who, in relation to [the official’s] office,

are in a subordinate relationship [to the official]. In this case, YANG Yanhu indeed took

advantage of the conveniences of his office as a member of the Standing Committee of the CPC

Yiwu Municipal Committee, as the Deputy Director of the Standing Committee of the People’s

Congress of Yiwu Municipality, and as the General Director of the Directorate to informally

contact3 the personnel of the subordinate Rights Confirmation and Approval Division and its

Deputy General Director, thereby effecting the demolition, relocation, and resettlement falsely

reported by WANG Yuefang et al.

With respect to the defense views put forward by defendants YANG Yanhu et al. and their

defenders that defendant WANG Yuefang should have received land resettlement compensation

1 Translators’ note: The Chinese text does not specify which court opined. Given the context, this should

be the Higher People’s Court of Zhejiang Province. 2 Translators’ note: The Chinese text has a period here, rendering a sentence fragment.

3 Translators’ note: The Chinese text has “打招呼”, which carries a meaning that no single English

expression, including “informally contact”, can fully capture. In this context, the term suggests that YANG

contacted his subordinates, telling them to “take care” of WANG et al., without giving them exact work orders.

Considering that YANG was a leader, YANG’s subordinates would give YANG “face” by treating WANG et al.

favorably.

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and the land involved in the case was collective land and [thus their actions] could not constitute

the crime of graft. According to investigation, WANG Yuefang was [holding] a resident

household when she bought the property. According to the legal provisions and related Yiwu

Municipality provisions on demolition, relocation, and resettlement, [WANG Yuefang] was not a

target for demolition, relocation, and resettlement, and did not have the qualification to receive

land rights confirmation. [Moreover], the property that WANG purchased in Gonghe Village

[qualified] neither [for] obtaining land rights confirmation nor for [obtaining] demolition,

relocation, and resettlement compensation. YANG Yanhu et al. clearly knew that WANG

Yuefang did not meet the demolition, relocation, and resettlement conditions, yet took advantage

of the convenience of YANG Yanhu’s office, by falsely reporting that the property that WANG

Yuefang had purchased was an old home passed down by her ancestors and by fabricating the

division of family property between WANG Yuefang and WANG Mouxiang, to fraudulently

obtain the demolition, relocation, and resettlement qualification of the old home and to

fraudulently obtain the state land rights confirmation. At the same time, YANG Yanhu took

advantage of the conveniences of office, [and] YANG Yanhu, WANG Yuefang, et al. committed

fraud; [these acts] not only made ZHAO, the owner of the old home purchased by WANG

Yuefang, receive land resettlement compensation as a houseless household, but also made

WANG Yuefang, who should not have received land resettlement compensation, receive land

resettlement compensation.

Articles 2 and 9 of the Land Administration Law of the People’s Republic of China

provide that land in [China]4 is operated [under] the socialist public ownership system, that is,

the ownership-by-all-of the-people system and the collective-ownership-by-the-laborers system,

and may, in accordance with the law, be designated for use by units or individuals. The

possession, use, development, operation, transaction, and circulation of land can bring

corresponding economic benefits. Therefore, land-use rights naturally have property interests

and they, regardless of whether the land is state-owned or collectively owned, are regarded as

“public property” as stipulated in Article 382 Paragraph 1 of the Criminal Law and can become

the object of graft. The land resettled under WANG Yuefang’s name was already expropriated

to be state-owned and converted to land for construction in August 2002. The Yiwu

Municipality government’s document Copying and Informing Note also made clear that a state-

owned land-use certificate was issued for the registration of the “rights to use land for demolition,

relocation, and resettlement” for that area. Thus, the defense views put forward by YANG

Yanhu et al. and their defenders could not stand.

In summary, defendant YANG Yanhu, as a state functionary, took advantage of the

conveniences of his office as a member of the Standing Committee of the CPC Yiwu Municipal

Committee, as the Deputy Director of the Standing Committee of the People’s Congress of Yiwu

Municipality, and as the General Director of the Directorate of the International Trade City, in

collusion with defendants ZHENG Xinchao and WANG Yuefang to fabricate a story, to

fraudulently obtain state-owned land-use rights and to illegally take possession of public property.

4 Translators’ note: The Chinese text has “我国” (“my country”).

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The acts of these three defendants all constituted the crime of graft. YANG Yanhu also took

advantage of the conveniences of office to demand or accept bribes offered by others and to seek

benefits for others. His acts also constitute the crime of accepting bribes, and [YANG] should

receive a combined punishment for multiple crimes in accordance with law. In the joint

commission of the crime of graft, YANG Yanhu played a primary role as the primary culprit, and

[the courts] should punish him in accordance with all the crimes that he participated in,

organized, or directed; whereas ZHENG Xinchao and WANG Yuefang played secondary roles as

accomplices, and [the courts] should mitigate [their] punishment. Therefore, the courts of first

and second instance rendered the above adjudication in accordance with law.