登录新浪财经APP 搜索【信披】查看更多考评等级 炒股就看金麒麟分析师研报，权威，专业，及时，全面，助您挖掘潜力主题机会！ 来源：合规小兵 券商保代是"国家工作人员么"？ ——深度解读杜某突击入股被判受贿罪一案 卫丽娟 【前言】 近期，数名券商保荐代表人因经济犯罪获刑，引发业内震动。其中，保代杜某以受贿罪被判处十年以上 有期徒刑案，非常典型，值得深入讨论。长期以来，对于保代"突击入股"，监管多从行政层面处理，采 取没收违法所得、罚款及证券市场禁入等措施。即便入刑，也普遍适用刑期较轻的非国家工作人员受贿 罪。此次杜某案清晰地以受贿罪定性，是个案罪名简单的变更，还是司法机关对特定金融从业人员身份 属性的重新界定？ 【案情回顾】 杜某是资深保代，研究生毕业后便入职某大型券商投行业务部。曾主持或参与了多个重要资本运作项 目，包括案涉的振某新材等IPO项目，是业内比较知名的保荐代表人。案发前职级为管理委员会执行总 经理（ED），属于投行中层业务骨干。 2019年8月，某证券公司与振某新材正式签订上市辅导协议，杜某以辅导组组长、项目负责人和保荐代 表人的三重身份，全面主导该项目的IPO工作。当时，振某新材资金紧张。公司拟 ...

Core Points - The article discusses the case of a public official, referred to as Shi, who was involved in multiple criminal activities including gambling, bribery, and abuse of power, leading to severe legal consequences [4][7][16] Group 1: Case Background - Shi joined the Communist Party in September 2013 and worked at a local government agency responsible for urban construction management [4] - From 2020 to 2023, Shi exploited his position to assist farmers in obtaining undue financial benefits, resulting in illegal gains of over 150 million yuan [4][15] - Shi was administratively punished for gambling in 2017 and later convicted of operating a gambling den, receiving a suspended sentence and a fine [5][12] Group 2: Legal Proceedings - The investigation into Shi's misconduct began in March 2024, leading to his detention and subsequent criminal charges for bribery, abuse of power, and fraud [6][7] - On November 8, 2024, the local prosecutor's office formally charged Shi with multiple offenses, culminating in a combined prison sentence of 18 years and a fine of 1.23 million yuan [7][14] Group 3: Legal Interpretations - The article emphasizes the importance of distinguishing between different types of misconduct by public officials, particularly regarding gambling and bribery [9][11] - It clarifies that Shi's actions constituted bribery rather than embezzlement, as he did not illegally possess public funds but rather solicited private payments from farmers [15][16] - The case illustrates the legal framework governing public officials' conduct, highlighting the need for strict adherence to both party discipline and national laws [3][13]

Core Viewpoint - The article discusses the legal interpretation of bribery cases, particularly focusing on the conditions under which the return or surrender of received assets by state officials is treated in relation to bribery charges [1][3]. Summary by Sections Legal Provisions - The "Two Highs" issued an opinion clarifying that if state officials return or surrender received assets promptly, it is not considered bribery. Conversely, if the return occurs due to investigations related to the bribery, it does not affect the recognition of the bribery offense [1][2]. Case Analysis - A case involving a vice president of a court and a private company owner illustrates the complexities of determining bribery. The official received 10 million and later 50 million, with partial returns complicating the assessment of whether these amounts constitute bribery [2][3]. Different Perspectives on Bribery - There are differing opinions on whether the 50 million received should be counted as bribery. One view suggests that since the official attempted to return the funds promptly, it indicates a lack of intent to commit bribery. Another perspective argues that only part of the returned amount should be excluded from the bribery total, as the remaining amount was accepted after the bribery was established [3][4]. Understanding Intent - The interpretation of the law emphasizes that the intent behind receiving and returning assets is crucial. The official's immediate decision to return the 50 million indicates a lack of intent to accept a bribe, while subsequent actions may suggest a change in intent [5][6]. Relationship Between Legal Provisions - The article clarifies the relationship between the two clauses of the legal opinion, emphasizing that the first clause addresses situations without intent to commit bribery, while the second clause deals with cases where intent is present. The case discussed illustrates how the official's actions shifted from rejecting to accepting a bribe, leading to a conclusion of bribery [7].

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].