Is reciprocity or violation of discipline and law? These three moves will help you distinguish clearly

A few thoughts on distinguishing between reciprocity and violation of discipline and law

Public officials who violate the spirit of the eight point regulations of the central government by accepting gifts in violation of regulations are the focus of disciplinary inspection and supervision agencies in enforcing discipline and must be strictly investigated and punished. In practice, a small number of party members and cadres use "reciprocity" as an excuse for receiving gifts, which causes certain difficulties in characterizing disciplinary and illegal behaviors. Whether it is reciprocity or suspected violation of discipline and law, the author believes that substantive judgment should be adhered to, which can be distinguished through the following three aspects.

Take a look at the relationship between the giver and the recipient. Normal reciprocity often occurs between relatives and friends, but the existence of violations of discipline and law cannot be completely denied just because the relationship between the recipient and the gift giver is close. It is also not ruled out that "reciprocity" occurs between relatives and friends. The key is to examine the purpose for which the behavior of the recipient and gift giver is based. Through the act of receiving and giving gifts, it is common for emotions to be expressed in the form of objects, such as parents giving their children lucky money, and relatives and friends giving gifts based on family and friendship, without any additional demands. This is human nature. However, expressing certain interests and demands in the form of objects, such as between management and service objects, subordinate units and individuals within the scope of supervision, private enterprise owners, and other entities, in order to obtain personal interests such as projects, passing assessments, and smooth promotion, using emotional communication as the "outer garment" and using public power as consideration behind the scenes, has exceeded the scope of normal reciprocity and is considered a violation of discipline and law.

Check whether the act of receiving and giving gifts has social harm. According to the relevant provisions of the Party Discipline Punishment Regulations, social harm is an important condition for investigating the disciplinary responsibility of gift recipients. The so-called social harmfulness refers to the potential threat or adverse impact that a certain thing, behavior, or activity poses to society. Unlike individual harmfulness, social harmfulness focuses more on the infringement of the legitimate interests of the group or the entire society. The act of receiving and giving gifts in a normal way of reciprocity should not be considered a violation of discipline or law due to the legitimacy of the purpose, means, and interests, and the lack of social harm elements. The harmfulness of illegal gift giving and receiving behavior lies in the fact that the perpetrator has the intention to violate discipline and law. Sending and receiving are behaviors under the subjective control of consciousness. Some people actively give gifts, gifts, and other property to public officials, which inevitably have a desire and purpose. However, public officials, knowing the purpose of the gift giver, inevitably have the possibility of affecting the fair execution of their official duties. The second is that the perpetrator committed disciplinary and illegal acts. Both parties involved in receiving and giving gifts not only have the intention of subjectively undermining the integrity of their duties, but also carry out their actions through giving gifts and cash, arranging travel and entertainment activities, and other means. The third is that the consequences of the harm are predictable. According to the Regulations on Party Discipline Punishments and the Law on Administrative Punishments for Public Officials, the violation of discipline and law by both parties in receiving and giving gifts only requires the existence of conditions that may affect the fair performance of official duties, and is not necessarily based on the actual pursuit of benefits. As for whether it will affect the fair execution of official duties, it should be determined based on the actual situation. Therefore, as long as the perpetrator violates the integrity and public property management system of public officials, that is, meets the standards of foresight and has social hazards, it belongs to disciplinary and illegal behavior.

Check whether the behavior of receiving and giving gifts clearly exceeds the limit. The so-called exceeding boundaries refers to clearly exceeding the local economic development, living standards, customs and habits, personal economic capacity, and normal etiquette and social value. Reciprocity is a characteristic of reciprocity, and the amount of normal reciprocity is appropriate, not significantly beyond the scope of cognition, and there is interaction. The gifts and gifts given and received to each other are roughly equivalent in value. Violation of discipline and illegal gift giving generally manifests as the amount or value of gifts received or given exceeding the general level of social cognition, with obvious unequal amounts, or unilateral gift giving, lacking "interaction". The second refers to exceeding the boundaries of the recipient of the gift. The amount is not the only basis for determining whether it constitutes a violation of discipline and law. The act of receiving and giving gifts between public officials and units or individuals such as management and service recipients, due to the relationship between the identities of both parties and the performance of official duties, conflicts with the fair performance of official duties, and should be considered a violation of discipline and law.

It should be noted that in practice, the nature of the behavior may be overlooked due to the small amount of gifts received or the difficulty in determining the amount. According to Article 88 of the Regulations on Party Discipline Punishments and Article 13, Paragraph 2 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery by the "Two Highs" and other relevant provisions, those who take advantage of their position to accept gifts and gifts from others and seek benefits for others should be recognized as accepting bribes. Among them, those who meet the criminal filing standards and need to be held criminally responsible shall be transferred to the procuratorial organs for review and prosecution in accordance with the law; Those who fail to meet the filing standards cannot deny the essence of power money transactions due to their small amount. They should still be judged based on the nature of their behavior and recognized as bribery. They should be dealt with in accordance with the provisions of the General Provisions of the Regulations on Party Discipline Punishments in the Discipline Law. For those who cannot determine the value of gifts received due to consumption or other reasons, according to the above "two highs" judicial interpretation, the nature of the behavior should still be judged. As long as they take advantage of their position to receive gifts and gifts, seek benefits for others, or are regarded as promising to seek benefits for others, and the facts are clear and the evidence is conclusive, they all belong to bribery behavior, and the disciplinary and legal provisions in the Party Discipline Punishment Regulations should be applied for handling.