以案明纪释法丨收受银行卡后行贿人仍有使用情形下的既未遂认定

Core Viewpoint - The article discusses the legal implications of receiving bribes through bank cards, emphasizing that the amount in the card should generally be recognized as the bribe amount, regardless of whether the recipient has withdrawn or spent the money [1][8][11]. Case Summaries Case 1: Zhang and Yu - Zhang, a supervisor at the A District Housing Center, received a bank card from Yu, which contained 500,000 yuan, and later received additional deposits totaling 1.5 million yuan. Zhang used 300,000 yuan, while Yu, without Zhang's knowledge, transferred out 2 million yuan and spent 305,000 yuan [2]. - There are differing opinions on the bribe amount: one opinion states Zhang's bribe amount is 2 million yuan, while another suggests it should only be 30,000 yuan based on actual usage [4][5]. Case 2: Yang and Zhao - Yang, a deputy director at the B District Development and Reform Commission, received a bank card with 500,000 yuan from Zhao, who later borrowed 300,000 yuan from the card. The borrowing was not returned by Zhao by the time of Yang's case [3]. - The opinions on the bribe amount for Yang vary, with one stating it is 50,000 yuan, while another suggests it should be 20,000 yuan due to the borrowing [4][5]. Divergent Opinions - Three main opinions exist regarding the recognition of bribe amounts and the status of the crimes in both cases. The first opinion asserts full recognition of the amounts based on the control of the cards, while the second opinion emphasizes actual usage and control by the bribers [4][5][6]. - The third opinion, which is favored by the author, suggests a nuanced approach, recognizing both the total amounts and the actual control dynamics between the parties involved [6][14]. Legal Analysis - The article highlights that the determination of bribe amounts typically relies on the mutual agreement between the bribing and receiving parties, with the amount in the bank card generally being recognized as the bribe amount [7][8]. - It also discusses the importance of actual control over the funds in determining whether the crime is completed or attempted, noting that if both parties can control the funds, the recognition of the bribe amount should be cautious [10][12][14].