Lawyer

Chapter 380 Chapter 394 Chapter 395 (Merged Chapters) I really can't believe everything the parties say! !

"Now it's up to the prosecutor to speak." The presiding judge turned his big eyes and looked at the public prosecutor's bench.

"Presiding judge and judges, we believe that the court of first instance found the facts clearly, the evidence is sufficient, the application of the law is correct, and the sentence is appropriate. Please the court reject the appellant's appeal according to the law. Finished." The male prosecutor said.

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"In response to the defender's defense opinion, we believe that, according to the requirement of the uniformity of terminology in criminal law, the same term in the same law should generally be given the same interpretation.

The "larger amount" in the two sentences of the crime of misappropriation of funds is in the same clause of the same crime and should be interpreted in the same way.

Since the starting point for "a relatively large amount that has not been repaid for more than three months" and "a relatively large amount that is engaged in profit-making activities" is 10 yuan, then the "large amount will not be refunded" in the same charge 10 yuan should also be the starting point for sentencing.

Therefore, we believe that the appellant Yun Qi misappropriated 15 yuan of funds for investment and has not returned the misappropriated funds so far. His behavior was found to be "non-refundable for a large amount" which is consistent with the facts and should be more than three years but less than ten years Sentenced to fixed-term imprisonment.Therefore, the sentencing in the first instance was appropriate. " said the male prosecutor.

"The defender can respond to the prosecutor's opinion." The presiding judge said.

"Okay, based on the Prosecutor's defense and response, the defense makes the following defense:

The defender believes that the "larger amount" in the two sentences of the crime of misappropriation of funds should not be interpreted in the same way for the following reasons:
According to Article 2015 of the "Criminal Law" (270 Amendment), the crime of misappropriating funds is divided into two sentencing levels.

The first sentencing grade is: Misappropriating the funds of the unit for personal use or lending to others, the amount is relatively large and has not been repaid after more than three months, or although the amount has not exceeded three months, the amount is relatively large and conducts profit-making activities, or Whoever engages in illegal activities shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

The second sentencing grade is: whoever misappropriates a huge amount of funds from the unit, or does not return a relatively large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

According to the provisions of Article No. 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery (hereinafter referred to as the "Interpretation"), the starting point for the "large amount" in the crime of misappropriating funds , according to this Interpretation on the crime of misappropriation of public funds "the amount is relatively large" twice the amount of standard provisions.

Article 5 of the "Interpretation" stipulates that those who embezzle public funds for personal use, carry out profit-making activities or fail to return them for more than three months, and the amount is more than 380 yuan, shall be deemed as "a relatively large amount" as stipulated in the first paragraph of Article [-] of the Criminal Law. '.

According to the "Interpretation", in the first sentencing grade of the crime of embezzlement of funds, whether it is "the amount of misappropriation of funds for personal use or lending to others, the amount is relatively large" or "the amount of embezzlement of funds for profit-making activities, the amount is relatively large", The starting point of the "larger amount" here is twice the amount standard of "larger amount" for the crime of embezzlement of public funds, that is, 5 yuan multiplied by two, which is 10 yuan.

Generally speaking, according to the requirements of the uniformity of terminology in criminal law, the same term in the same law should indeed be given the same interpretation.But for the crime of misappropriation of funds, the defender believes that if the "larger amount" in the two sentencing grades is given the same interpretation, it not only violates the principle of adapting the crime to punishment, but also violates the original intention of the above-mentioned "Interpretation".

According to the provisions of Article 100 of the "Interpretation", "the misappropriation of public funds will not be refunded, and the amount is more than 200 million yuan but less than 380 million yuan" should be determined as a "serious circumstance" stipulated in the first paragraph of Article [-] of the Criminal Law (crime of misappropriation of public funds). ", that is, the upgrade condition of statutory punishment.

The defender believes that, compared with the crime of embezzlement of funds, the former is a misdemeanor and the latter is a felony. The situation of "non-refundable misappropriation" is a condition for upgrading the sentencing grade in the above two crimes, so a higher standard of amount should be applied to the upgrading condition of "non-refundable misappropriation" in the crime of "misappropriation of funds", and it should be in accordance with the above-mentioned "Interpretation" The upgrade standard is doubled for the "amount of more than 100 million yuan but less than 200 million yuan" stipulated in Article 200, that is, more than 400 million yuan but less than [-] million yuan.

If the crime of misappropriation of funds, which is a condition for upgrading the criminal file, is "a large amount will not be refunded", it will be determined according to the "large amount" (that is, 10 yuan) in the first criminal file, which will lead to the statutory penalty for the crime of embezzlement of funds. The upgrade standard is 10 yuan, but the statutory penalty upgrade standard for embezzlement of public funds (non-refundable embezzlement) is 100 million yuan.

In addition, it is not surprising in judicial practice that there are different interpretations of the same term in the provisions of the Criminal Law.Take the term "violence" that frequently appears in the "Criminal Law" as an example. "Violence" includes violence that causes death or serious injury, violence that causes minor or minor injuries, and violence that only causes temporary physical pain in daily life without causing harm. Violence of any material harm.

However, when sentencing the "violence" in specific criminal acts, it should still be based on the principle of adapting the crime to the punishment, and reasonably correspond to the degree of harm of the "violence" with the corresponding statutory punishment.

Similarly, in the crime of misappropriation of funds, since the "large amount" is in two sentencing levels, the conclusion drawn according to the same interpretation will inevitably lead to inappropriate crime and punishment, which violates the original intention of legislation.

In this case, the appellant Yun Qi misappropriated funds of 15 yuan and did not return them. The court of first instance determined that "the amount is relatively large and will not be refunded", and the choice of sentencing in the second penalty bracket, which is more than three years but less than ten years, is a crime of embezzlement of funds. Incorrect interpretation of the amount standard.

The defender believed that Yun Qi's misappropriation of 15 yuan of funds did not meet the standard of "non-refundable for large amounts" in the second sentence file, and should be sentenced in the first sentence file.

In summary, the court is requested to change the sentence of the appellant Yun Qi to six months in prison.complete! "Fang Yi said.

……

The procedures that should be followed have been gone, and everything that should be said in court has been said. Fang Yi has made the best effort. As for the result, no one knows except the judges of the collegial panel.

The court was adjourned for 10 minutes, and the atmosphere in the courtroom was a bit oppressive. Yun Zhenxing wanted to come to Fang Yi to ask about the situation, but seeing that everyone was sitting still and there were bailiffs wandering back and forth, he still did not leave the public gallery.

In the public prosecutor's seat opposite the defense seat, two prosecutors were muttering something in a low voice, too far away for Fang Yi to hear.

Soon, 10 minutes passed, and three judges entered the courtroom.

"... Please the bailiffs bring the appellant Yun Qi to the court." Seeing that Yun Qi was brought into the court by the bailiffs, the presiding judge said confidently: "This case has been deliberated by the collegial panel and a verdict has been formed. Regarding the opinions of the prosecution and the defense, combined with this case The focus of the dispute, based on the facts and evidence of this case, the court's comment and analysis are as follows:

... The appellant in this case, Yun Qi, misappropriated 15 yuan of funds from his unit, which did not meet the standard of "not refunding a large amount" in the crime of embezzlement of funds, but only met the standard of "conducting profit-making activities with a relatively large amount", so this behavior should be Sentencing within the range of fixed-term imprisonment of less than three years or criminal detention.

It was an error in the application of law that the original judgment imposed a fixed-term imprisonment of three to ten years for this behavior, and the sentencing was improper and should be corrected.The verdict is as follows:
[-]. Uphold the original judgment on recovery of illegal gains;

[-]. Revocation of the judgment on appellant Yun Qi's sentencing and compensation;

[-]. The appellant, Yun Qi, committed the crime of embezzling funds and was sentenced to six months in prison;

[-]. Order to refund the misappropriated funds (compensation has been refunded). "

After hearing the final revised sentence, Yun Qi, who was standing below, relaxed his face. The six-month prison term was converted into the time he had been detained before, and he would be able to go out in another month or so. How could Yun Qi not relax? .

Yun Zhenxing also breathed a sigh of relief. His son's sentence was changed from three years to six months. He still has nothing to be satisfied with.Should he be acquitted?He is a sensible person, and it is impossible for his son to be acquitted if he committed a crime.

Fang Yi felt a little surprised, he did not expect that the court really adopted his sentencing suggestion and changed Yun Qi's sentence to six months in prison.

In fact, when you think about it, it makes sense. After all, Yun Qi’s family actively refunded the embezzled funds, and after Yun Qi was brought to justice, he actively cooperated with the investigation. Yun Qi will be punished with a minimum sentence of three years. The court of second instance will consider applying the lower sentence in the first tier (up to three years of fixed-term imprisonment or criminal detention) in consideration of the circumstances of the case. However, Yun Qi has been detained for more than four months. Now, the application of criminal detention (more than one month but less than six months) seems too lenient, and the time limit is not suitable, so it is most appropriate to apply the minimum sentence of fixed-term imprisonment (six months).

After the verdict, to express his gratitude, Yun Zhenxing specially invited Fang Yi to have a meal at the best restaurant in the city, and everyone accompanied him.Fang Yi's hospitality was hard to bear, and he didn't drink any alcohol considering he had to drive back in the afternoon.

Until Fang Yi drove away from the hotel and embarked on the return journey, the big red envelope promised by Yun Zhenxing was not fulfilled, Fang Yi couldn't help sighing: I really can't believe everything the person said! !
When the dawn light covered the earth, the fresh air outside the window continuously poured into the room through the open window, which made Fang Yi, who was lying on the big wooden bed and sleeping soundly, feel a bit of coolness, opened his eyes and glanced at the electronic alarm clock beside the bed , five forty.Fang Yi stretched, then lay on the bed staring blankly at the ceiling in a daze, the physical strength of a middle-aged person is really not as good as before.

When I drove home yesterday, it was not time for dinner. Fang Yi, who was tired all day, put on big pants and a vest, washed his face, and then went to the small restaurant downstairs to have a meal.Back at his residence, he wanted to read a book for a while, but within a minute of lying on the bed, his eyelids became heavier and heavier, and he started snoring soon.

The gurgling sound in his stomach interrupted Fang Yi's daze.

In the morning, Fang Yi came to the law firm, and when he was holding a teacup to make tea, Huang Yuanchao walked over quickly.

"Old Fang, do you have any arrangements for tomorrow?" Huang Yuanchao asked.

"Let me take a look!" Fang Yi put down his teacup and flipped through the calendar: "It's okay, there is no arrangement. What's the matter?"

"The client I told you about last time has a clue. In just a few days, you and Ma Yi will go to the northeast with me, and you will be back in two or three days." Huang Yuanchao said.

"Your client is in the northeast?" Fang Yi was startled.

"No, his company is in the city, but his hometown is in the Northeast. His mother was in the ICU before. Didn't she lose her staff a few days ago? He wants to work in his hometown, and my client has gone back to his hometown. I'm going to go there. Take this opportunity to get in touch with each other," Huang Yuanchao said.

"Old Huang, is this a good time to go?" Fang Yi was a little hesitant, thinking to himself: Why do you want to join in the fun when you are doing business?

"Is there anything appropriate these days? I heard that several law firms have already sent people to the Northeast. I'm too late." Huang Yuanchao said seriously.

"Ah! So evil! What a big client this must be!" Fang Yi exclaimed in shock.

When the old mother of the CEO of Defa Group passed away, he followed Sun Zhengyi to the funeral and obtained business, but he was unsuccessful and came out without seeing the right owner, that is, Zhou Shen whom Fang Yi knew at that time.

This time, Lao Huang proposed to go to the Northeast to participate in the funeral to solicit business. It is a long way, and it costs a lot of money to travel.

"Let's put it this way, the annual legal fee hired by their company is not high, only 10 yuan, but there are many non-litigation projects, and some litigation projects. This company belongs to the kind with great potential and great development. Fast technology company.

The relationship is almost done before. This is a business developed by me personally. I have agreed with the boss. If it can be signed, it will be handed over to the regular team of the team for maintenance, but all the business generated by this company will belong to me. Here, the lawyer's fee counts for me!

The legal counsel of their company is about to expire, and this is the last step! "Huang Yuanchao laughed.

"Hmm! It's worth a trip, so what are we going to do?" Fang Yi asked with his eyes brightened.

If he can really sign this group company, maybe there will be a criminal case in the future. With his relationship with Lao Huang, the criminal case will definitely be assigned to him first.Fang Yi reckoned that Ma Yi's thoughts were similar to his own. Among the company's executives, there must be a few morally corrupt and divorced ones, and they could collect a lot of money if they got one or two cases a year.

"Of course it's a big job. You just support me, and I'll do everything else. I'll cover the travel expenses. The food is delicious. You have the right to travel. Up to three days!" Huang Yuanchao said with a smile.

"Ma Yi and I are the second generals of Hum Ha!" Fang Yi said.

"Well! That's what it means. The main reason is that I don't have the confidence to go alone, and there are many law firms watching. It is easier to do things when there are more people." Huang Yuanchao nodded.

That afternoon, Huang Yuanchao booked tickets for Fang Yi and Ma Yi. Early the next morning, the three of them took a taxi to the train station and got on the train to Northeast China.

It was already late August at this time, and I took the train all the way north, and the weather became cooler the further I went.It was already afternoon when the three of them walked out of Harbin Railway Station, and the sun was shining softly in the west. As soon as they stepped out of the train station, the autumn wind blew, and Fang Yi suddenly felt chilly, so he put on a casual jacket.

(End of this chapter)