The following text is compiled based on lawyer Zhao Yunheng’s remarks at the forum and is presented here for our readers.

Zhao Yunheng  
 

Honorary Director of Beijing Xinglai Law Firm and Founder of the “Twenty Criminal Defense Lawyers Forum”

According to news reports, in 2024, the total number of criminal cases filed in our country declined by 25.7%. This figure undoubtedly highlights the remarkable achievements our country has made in public security management and has positioned our country as one of the safest nations in the world.

However, in this asymmetric environment, there is always a segment of the population that remains vulnerable—namely, the groups involved in official misconduct: those who offer bribes and those who accept them. These can be described as today’s high-risk groups. According to the latest data, in the first half of 2025, disciplinary inspection and supervision authorities nationwide initiated investigations into 16,000 individuals accused of offering bribes, with 1,990 of them being referred to procuratorial organs—a trend that has been steadily rising in recent years. This indicates that, against the backdrop of ongoing anti-corruption efforts, as the number of officials caught in corruption cases continues to grow, an increasing number of entrepreneurs linked to these officials are also being investigated and prosecuted, leading to a continuous rise in the number of bribery-related cases.

Behind this upward trend lie complex policy and practical factors. On the one hand, our country has consistently maintained a high-pressure stance against corrupt practices and continues to intensify punishment for bribery, particularly in key sectors such as finance, state-owned enterprises, and energy. As anti-corruption efforts continue to deepen and expand, an increasing number of new and old bribery cases have come to light.

On the other hand, differences in the actual implementation of criminal policies have also affected the volume of cases. Although our country vigorously promotes the protection of the private economy and the development of the private sector, emphasizing the protection of private entrepreneurs, public security organs—as government departments—must promptly implement criminal policies and ensure that these policies yield immediate results, enabling them to be swiftly put into practice. For example, the once-widespread practice of “distant-water fishing” has significantly declined since a series of central and local policies and reform measures were intensively introduced. Some of these previously accumulated cases are now being resolved. However, the focus and tasks of the supervisory authorities differ from those of the public security organs. As political bodies, supervisory authorities have unique responsibilities and missions in the fight against corruption, which means that even within the broader context of protecting the private economy, they will not relax their efforts in investigating and prosecuting bribery-related cases. This has led to a paradoxical situation: despite seemingly contradictory policy environments, the number of bribery cases continues to rise, and news reports frequently highlight instances of listed company bosses being placed under detention by the supervisory commission.

In bribery cases, a striking phenomenon is the significant gap between the number of cases filed and the number of cases prosecuted. Each year, the number of bribery cases filed is substantial—often reaching nearly 20,000—but the actual number of individuals prosecuted accounts for only about one-eighth of the total number of cases filed.

The emergence of this phenomenon is closely related to a variety of factors.

First, from a legal perspective, according to Article 15 of the Supervision Law, the subjects of supervision are primarily public officials. Private entrepreneurs do not fall under the category of public officials and thus are not subject to supervision; rather, they typically serve as persons involved in the case and assist in cooperating with the investigation. This places private entrepreneurs within a range where prosecution is both possible and optional, affording considerable flexibility in the handling of cases.

Second, in cases of official misconduct, the supervisory authorities’ approach of handling cases according to the “four forms” is also a major factor contributing to the gap between the initiation of investigations and actual prosecutions. Among the “four forms,” the first three account for more than 90% of all cases handled; only 5% to 6% of individuals are referred to criminal proceedings for prosecution. Private entrepreneurs, however, are not subject to supervision by the supervisory authorities. Once they are detained, they typically face only criminal prosecution as the sole available option. Yet, given their special status in these cases—and considering the need for supervisory authorities to take into account various factors during the investigation process, including leveraging entrepreneurs as key witnesses to substantiate evidence of officials’ crimes, ensuring the survival and development of the enterprises involved and safeguarding employees’ jobs, and encouraging entrepreneurs to voluntarily return illicit assets—some cases are resolved and dealt with at the investigation stage by the supervisory commission or the review stage by the procuratorate, without ever reaching the prosecution stage.

By the way, I’ve already proposed at other meetings that we invite academic experts to study a legal issue: whether lawyers are entitled to intervene during the investigation phase when private entrepreneurs are under investigation by the Supervisory Commission. The reason is that supervisory authorities handle cases according to the “four forms,” and upon conclusion of a case, they often divert resources—many cases are dealt with solely as political disciplinary actions, without necessarily escalating into criminal proceedings. This has become a justification for denying lawyers the right to provide defense. However, private entrepreneurs are not public officials and thus do not fall within the scope of supervision; consequently, the “four forms” do not apply to them. Once they are placed in detention, there’s only one possible outcome—the initiation of criminal prosecution. So, from a theoretical standpoint, shouldn’t it be self-evident that we must safeguard the right to defense for those facing criminal prosecution? Therefore, we need to promptly study the differences in legal rights between public officials and non-official individuals who cooperate with investigations, and swiftly translate these findings into legislative provisions.

Third, the prosecution standards for bribery offenses also create a discrepancy between the initiation of a case and the filing of charges. Currently, the threshold for establishing the crime of accepting bribes is relatively broad—public officials can generally be convicted as long as they accept money or other benefits. In contrast, the determination of bribery offenses is more complex. Besides circumstances under which prosecution may be waived, the law also requires that the briber must have acted with the intent to obtain an improper advantage. In specific cases, however, the definition and assessment of what constitutes an “improper advantage” often give rise to disputes, making it difficult for some bribery cases to meet the prosecution standards.

Given the aforementioned characteristics of bribery-related cases, the scope for defense is continually expanding. During the defense process, one can focus on several key points.

First, the policy context: As the state increasingly emphasizes the private economy, a series of policies aimed at safeguarding its development have been successively introduced, such as the “Law on Promoting the Private Economy” and the “Opinions on Promoting the Development and Growth of the Private Economy” issued by the Party Central Committee and the State Council. These policies carry significant guiding importance in judicial practice, and defense attorneys can fully leverage them to secure favorable outcomes for their clients.

Second, the legal context: There are differences in how bribery and accepting bribes cases are handled. The law tends to be relatively lenient toward acts of bribery. If the defendant cooperates well, proactively admits to the issues, and actively returns the relevant assets, these factors will be taken into account during sentencing, thereby providing a certain degree of room for defense.

Third, the actual difficulties faced by a company can also serve as an important defense factor. In the current environment of economic downturn, enterprises are facing numerous challenges to their survival and development. For some companies involved in cases, if their business operations are struggling and they play a significant role in local economic development, judicial authorities will typically take this into account during the investigation process. For example, in a case we handled in a certain city involving the detention of a private entrepreneur, although lawyers were not allowed to directly intervene as defense counsel, we managed to gain the understanding and approval of the supervisory authority staff by guiding the family members to draft and submit a request for conditional release, elaborating in detail on the company’s difficulties and its importance to the local economy. As a result, the attitude of the supervisory authority toward both the family and the company underwent a positive shift; they explicitly stated that they would wrap up the investigation as soon as possible, ensure effective communication between the entrepreneur and the company throughout the investigation period, and provide support for the company’s stable development.

In recent years, the state has continuously stepped up its protection of corporate property rights and has been cracking down ever more severely on any acts that infringe upon such rights. The introduction of relevant policies has provided clear guidance and strong support for combating corruption within enterprises. Currently, anti-fraud efforts in enterprises are in full swing, with major corporations actively engaging in this work, bolstering their internal anti-corruption capabilities by hiring lawyers—especially those with experience in public security, prosecution, and judicial organs—to serve as legal advisors, conducting internal investigations, interrogations, and prosecutions. Similarly, external lawyers can also provide defense for suspects involved in these criminal cases. In addition to enterprises’ own anti-fraud initiatives, public security authorities have also been taking vigorous enforcement measures. Public security agencies at both the central and local levels are carrying out comprehensive investigations, including retroactive reviews of long-standing and pending cases involving enterprises—cases that should have been filed but weren't, or cases that shouldn't have been filed but were—gradually correcting these issues. During the “Guardian 2024” special campaign launched by the Zhejiang Provincial Public Security Department in 2024, a total of 1,298 cases of internal corruption within enterprises were solved, 1,997 suspects were apprehended, and losses suffered by enterprises were recovered to the tune of over 920 million yuan, with an overall recovery rate exceeding 50%. We should promptly stay informed about these policies and special campaigns and actively apply them in our cases.

In internal anti-fraud cases within enterprises, a notable characteristic is that while the types of cases tend to be relatively simple, the underlying circumstances are often quite complex. According to publicly available data, the charges in such cases primarily fall into several common categories. Among these, embezzlement by employees ranks highest in number, accounting for a significant proportion of all cases. Misappropriation of funds is also fairly common and often overlaps to some extent with embezzlement cases. Additionally, bribery cases involving non-state personnel occur from time to time.

Yet behind these seemingly simple charges lie extraordinarily complex case details that directly affect the chain of evidence and legal relationships. On the one hand, in today’s rapidly advancing internet era, electronic data, electronic payments, and electronic settlements have become ubiquitous. As a result, criminal methods are no longer limited to traditional approaches such as simply altering documents or intercepting funds. Instead, perpetrators often employ sophisticated technological tools and intricate transaction methods, making internal corporate fraud increasingly covert and complicated.

On the other hand, internal corporate disputes—such as equity disputes, investment-related conflicts, and labor disputes—also contribute to the growing complexity of cases. In some instances, there are intricate conflicts of interest between the perpetrators and the companies involved—for example, when bonuses that were supposed to be paid to employees were instead misappropriated by the employees themselves through various means. Is such self-help behavior considered ordinary tortious conduct, or does it constitute embezzlement in the course of one’s official duties? With an increasing number of similar internal disputes arising, we must carefully take into account the complexities of both internal and external factors in each specific case.

In internal anti-corruption cases within enterprises, an effective defense strategy is crucial. Here, I’d like to reiterate the comprehensive defense approach I’ve consistently advocated: step back from the specifics of the case itself and analyze it from a broader, more macroscopic perspective. Only by examining the deeper underlying causes behind the case can we address the problem at its root.

For example, recently in a certain city, I handled a case of embezzlement by an official. Although it was a relatively straightforward embezzlement case, the company involved wielded considerable influence in the city and made substantial contributions to the local fiscal revenue. As a result, the court could not help but take the company’s views into account, leading to an exceptionally protracted trial process. The defendant has already been detained for two and a half years, and the case has gone through four court hearings and five rounds of supplementary investigations—yet it still remains unresolved. This case clearly illustrates that when dealing with internal anti-corruption cases involving enterprises, the companies’ influence often exerts a significant impact on the direction of the proceedings. Unless the accused is completely innocent and can firmly maintain an innocence defense, in most cases the accused will, to some extent, bear some degree of fault. In such situations, the best approach is to communicate openly with the company’s boss and turn potential conflict into harmony.

In many similar cases, the root of the conflict often lies in personal grievances or clashes of economic interests between the individual involved and the company’s boss. For example, in the case where Musk sued a Chinese engineer, the conflict arose because the scientist had defected to a rival company, taking with him the company’s funds and core code—thus triggering a fierce confrontation between the enterprise and the individual. In such situations, if the underlying contradictions between the company and the individual cannot be fundamentally resolved, even if the defense lawyer provides a strong legal defense, once the case enters criminal proceedings, it indicates that the judicial authorities have, to some extent, already endorsed the company’s criminal charges. This significantly increases the difficulty of the defense, and ultimately, it is the individual who ends up suffering the most.

Since today’s discussion is about strategy rather than specific methods, I’ll only touch on the broader aspects briefly for your reference. Thank you!

Editing and Layout: Wang Xin

Reviewed by: Management Committee