Lawyer

Chapter 884 Please Respond

"The prosecutor questioned the appellant about the facts identified in the first-instance judgment." The presiding judge looked at the public prosecutor.

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"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should focus on determining charges, sentencing and other controversial issues.

The appellant speaks first. "The presiding judge said step by step.

Xu Qiguo is still the same set of words, the same meaning is repeated over and over again, I do not constitute a crime.

"The defender of the appellant Xu Qiguo made a speech." The presiding judge continued the procedure.

"Presiding judge, judge: The defender believes that the appellant Xu Qiguo does not constitute the crime of embezzlement of public funds for the following reasons:

According to Article 384 of the "Criminal Law", there are three objective acts that constitute the crime of misappropriating public funds, that is, state functionaries take advantage of their positions to misappropriate public funds for personal use and carry out illegal activities; or embezzle a relatively large amount of public funds and engage in profit-making activities;

First of all, according to the evidence in the case, the appellant Xu Qiguo lent public funds to the training school for use. After the training school received the money, it used the money for legitimate school-running activities, which is obviously not an illegal activity.

Secondly, Xu Qiguo's loan to the training school is an act of mutual emergency between the units. Lending the village's public funds to the private school for expansion work should not be regarded as a profit-making activity.

Finally, the behavior of the appellant is not a case of misappropriation of public funds for personal use.

According to the "Interpretation of the Standing Committee of the National People's Congress on the First Paragraph of Article 384 of the Criminal Law of the People's Republic of China", the misappropriation of public funds is interpreted as "for personal use" into three situations:

In the first case, using public funds for personal use, relatives, friends or other natural persons;
In the second case, public funds are used by other units in the name of individuals;

In the third case, an individual decides to use public funds in the name of the unit for use by other units for personal benefit.

Based on the evidence in this case, it can be known that the entity (training school) used the public funds in this case, so the first case can be directly ruled out.

The 200 million yuan land acquisition compensation that Xu Qiguo decided to lend was in the name of the village committee, not in the name of an individual.

Xu Qiguo had already lent 600 million yuan of public funds to the training school before the village committee held a meeting to discuss lending 200 million yuan of public funds to the training school.

Although Xu Qiguo personally decided to lend the 200 million yuan without explaining to the village committee, it cannot be determined that the loan was in his own name.

Because, judging from the 200 million yuan transfer certificate, the payer stated that it was the village committee, and the payee was the training school; from the receipts of the training school, it also stated that the loan was received from the village committee; from the procedures of loan handling and repayment, Xu Qiguo did not lend public funds to the training school privately, but handled it through the village committee member and accountant.When repaying the money, the training school also directly returned the money to the village committee, not to Xu Qiguo himself.

It can be seen from this that there is no evidence to prove that Xu Qiguo borrowed money from the training school in his own name. Personal decision to lend public funds and lending public funds in his own name are two completely different concepts.

In this case, the village committee was aware of the whereabouts and uses of the 200 million yuan of public funds, and directly controlled the collection of the IOUs on schedule.

Therefore, Xu Qiguo’s behavior does not fall under the circumstance of “using public funds for other units’ use in the name of an individual” stipulated in item (384) of the Interpretation of Article [-] Paragraph [-] of the National Committee of Senior Officials.Therefore, it was wrong for the first-instance judgment to determine that Xu Qiguo 'diverted public funds to others for use in his own name'.

After Xu Qiguo lent 200 million yuan, the village committee discussed and decided to lend 600 million yuan to the training school. Although Xu Qiguo did not explain the previous loan of 200 million yuan during the village committee’s research, the 200 million yuan was actually included when he performed the contract with the training school, and there was no evidence to prove that Xu Qiguo sought personal benefits.

Therefore, the behavior of the appellant does not fall under the circumstance of 'an individual decides to use public funds in the name of the unit for the use of other units for personal benefit' as stipulated in Item (384) of the National Committee of Senior Officials' Interpretation of Article [-] Paragraph [-] (Criminal Law of the People's Republic of China).

To sum up, Xu Qiguo's lending of public funds to training schools was neither "diverting public funds to others for use in his own name", nor "individual decision to use public funds for other units in the name of his unit for personal benefit". Therefore, Xu Qiguo's personal decision to lend public funds to training schools did not comply with the legislative interpretation of misappropriating public funds for personal use, so it did not constitute the crime of embezzlement of public funds.complete. "Fang Yi issued a defense opinion.

"Now it's up to the prosecutor to speak," said the presiding judge.

"Presiding judge, judge: We believe that the court of first instance found the facts clearly, the evidence is sufficient, and the law is correctly applied. Please the court reject the appellant's appeal according to law. Finished." The prosecutor said.

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

"Okay, for the defender's defense, we mainly express the following points:
The borrower's training school is a private school with profit-making activities in mind. The appellant Xu Qiguo knowingly knowing the nature of the training school and the purpose of the loan to lend money to the training school is embezzlement of public funds for profit-making activities.

According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Misappropriation of Public Funds Cases, Article [-], Paragraph [-], which stipulates that "misappropriating public funds for others to use, knowing that the user is using them for profit-making activities or illegal activities, shall be deemed as misappropriation of public funds for profit-making activities or illegal activities." We believe that the appellant's behavior complies with the provisions of embezzlement of public funds for profit-making activities, which constitutes the crime of embezzlement of public funds.complete. said the inspector.

"Defenders can respond to the prosecutor's opinion." The presiding judge continued.

"Based on the Prosecutor's defense opinion and response, the defender issued the following defense opinion:

The essence of misappropriation of public funds is the private use of public funds for personal gain.In this case, Xu Qiguo’s loan to the training school was mainly to seek benefits for the village committee, the owner of the public funds, and to solve the problem that the village committee had not withdrawn funds for many years and the funds were tight.

There is no evidence in this case to prove that Xu Qiguo borrowed public funds subjectively for personal gain, nor is there any evidence to prove that Xu Qiguo sought personal gain. This is essentially different from the misappropriation of public funds for private use and public funds for personal gain. Therefore, his behavior is not misappropriation of public funds for profit-making activities.complete. " Fang Yi replied.

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(End of this chapter)