Lawyer
Chapter 925
Inspector Gao was frowning and listening earnestly, when suddenly there was no movement from Fang Yi, he couldn't help raising his head, just in time to see Fang Yi looking at him, and asked, "Is there anything else?"
Prosecutor Gao went through the case file yesterday afternoon, and always felt that there was something wrong with the case, but before he had time to think about it, he was notified that Fang Yi was coming to discuss the case, followed by a meeting in the courtyard, and he didn't have time to think about it carefully. Analyze the case.
What Fang Yi said today happened to be the question that he thought of yesterday, and now it will save him a lot of brain cells, but what Fang Yi said just now, he always feels that it is still a bit short, not complete.
"There are more." After finishing speaking, Fang Yi turned the lawyer's opinion in his hand to the next page, and continued:
"Second, infringing on the right to use public funds of the unit is an essential element of the crime of embezzlement of public funds. The behavior of the defendant Liu Mengge in this case did not infringe on the right to use public funds of the hospital, and did not constitute the crime of embezzlement of public funds.
The essence of the violation of the right to use in the sense of the Criminal Law is that the behavior of the perpetrator prevents the obligee from achieving the expected effect of using the property, and causes the obligee to use the property in vain.
The crime of misappropriation of public funds infringes the right to use public funds, which means that the public funds that should always be used for public purposes are attributed to individuals for personal use, making it impossible for the unit to effectively exercise ownership and power, and transforming the purpose of public use of public funds into the purpose of private use of public funds, that is, embezzlement of public funds "belongs to individuals" use".
In order to clarify the external manifestations of violations of the right to use public funds, the Interpretation of the Standing Committee of the National People's Congress on Paragraph 384 of Article [-] (Criminal Law of the People's ", etc. have made specific provisions on 'for personal use'.
In this case, when the county hospital’s 160 million yuan of drug and medical device funds were transferred out, the normal purpose of use was to pay off the hospital’s debts and eliminate the creditor-debt relationship between the hospital and the supplier arising from the sale of drugs and medical devices.
Although due to the behavior of the defendant Liu Mengge, the money that the county hospital should pay to the supplier has formally flowed to the company of the husband of the defendant Liu Mengge, but the intervention of the bank acceptance draft of the defendant's husband Tong Zhizheng's company was endorsed by the county hospital. The process of transferring to the supplier also achieves the effect of eliminating the creditor-debt relationship between the county hospital and the supplier, and achieves the purpose of replacing the hospital's drug and medical equipment funds for public use, that is, the county hospital's purpose of exercising the right to use public funds Did not fail.
In addition, as far as the function of repaying the debts of the county hospital is concerned, the bank acceptance draft endorsed by the defendant Liu Mengge's husband Tong Zhizheng's company and transferred to the supplier of the county hospital is exactly the same as the hospital paying the same amount of cash or a bank transfer check to the supplier.
Therefore, the defendant, Liu Mengge, obtained the prior consent of the supplier when paying the drug payment, endorsed and transferred the real bank acceptance draft by the county hospital for the payment of the drug payment, and then asked the accountant to issue an equivalent transfer check to her husband's company. During the process, the hospital as the payer to pay the drug payment is a one-way payment behavior or a debt settlement behavior. Whether the defendant Liu Mengge delivered the transfer check or the equivalent bank acceptance bill to the supplier of the county hospital, The final result is the settlement of the hospital's drug payment or the elimination of the debt, and the hospital's public funds will not be damaged or bear any risks due to the conversion of the payment method.
Therefore, we believe that Liu Mengge's behavior did not infringe the county hospital's right to use public funds, and his behavior was only a change of payment method, which only affected the time limit for the county hospital supplier to realize the payment stated in the acceptance bill.
Third, the possibility of restitution is the prerequisite for the crime of embezzlement of public funds.The crime of misappropriation of public funds is the act of state functionaries taking advantage of their positions to misappropriate public funds for personal use.
What the perpetrator infringes is the use right as the core, including the unit's interests in public property, including the right of possession and the right of income.
Although the above three kinds of rights and interests belong to the power of ownership, the behavior of this crime does not fundamentally shake the complete ownership of public property.The crime of misappropriation of public funds, which is "return what is stolen", is fundamentally different from the crime of embezzlement, which "does not return what is swallowed".
Subjectively, what the perpetrator has is the intention of temporary use and temporary possession, and plans to return it in the future after using it for a certain period of time.The intention of restitution is very clear, and the subjective intention of "preparing to return" must run through the entire process of the behavior. If there is an intention of permanent possession or embezzlement later, even if the behavior only has the intention of misappropriation at the beginning, criminal responsibility should be investigated for the crime of embezzlement.
Objectively speaking, if the crime of embezzlement of public funds is established, the embezzled public funds also have the possibility of restitution. The "Criminal Law" stipulates that those who embezzle a large amount of money and do not return it shall be given heavier punishment, which is intended to urge and encourage the perpetrators who commit the crime of embezzlement of public funds to actively return public funds and minimize the loss of public property. predicated on logic.Even if it is actually impossible to return after misappropriation due to objective reasons, there should be the possibility of restitution at the time of misappropriation.
In this case, the purpose of the county hospital’s disbursements is to pay the payables and settle the debts. This is the process of the county hospital’s funds flowing outward, and in fact the county hospital’s debts have indeed been repaid.
Therefore, objectively, there is no necessity or possibility for the money to be returned and reversed.Although the defendant, Liu Mengge, took advantage of his position to change the flow direction of the funds, his behavior of repaying debts with other forms of funds of the same amount instead, subjectively, it is impossible to temporarily use and return the funds to the hospital in the future Neither did he have the intention of embezzling the hospital's drug funds. "
The reason why Fang Yi brought up the crime of corruption in the third point is to prevent the prosecutors from relying on the crime of corruption in this case.Of course, if Prosecutor Gao really brought up the crime of corruption, he also has a countermeasure.
"To sum up, the main object of embezzlement of public funds protected by the Criminal Law is the owner's right to use and control public funds and the security of public funds.
In this case, Liu Mengge, the defendant, took advantage of his position to change the payment method of public funds out of the motive of facilitating the capital turnover of the company under the name of her husband Tong Zhizheng in the process of paying off the debts of the county hospital. His behavior did not control the county hospital. It has no substantial impact on the right to use public funds, nor has it caused the risk of loss of public funds, and has not violated the object protected by the crime of misappropriation of public funds.
We believe that the defendant Liu Mengge violated relevant financial disciplines by issuing bills, endorsement and other bills without having any basic relationship such as real transaction relationship and creditor-debt relationship.However, this behavior does not meet the nature and constituent elements of the crime of embezzlement of public funds, so the defendant should not constitute the crime of embezzlement of public funds. After Fang Yi finished speaking, he looked at Inspector Gao. (End of this chapter)
Prosecutor Gao went through the case file yesterday afternoon, and always felt that there was something wrong with the case, but before he had time to think about it, he was notified that Fang Yi was coming to discuss the case, followed by a meeting in the courtyard, and he didn't have time to think about it carefully. Analyze the case.
What Fang Yi said today happened to be the question that he thought of yesterday, and now it will save him a lot of brain cells, but what Fang Yi said just now, he always feels that it is still a bit short, not complete.
"There are more." After finishing speaking, Fang Yi turned the lawyer's opinion in his hand to the next page, and continued:
"Second, infringing on the right to use public funds of the unit is an essential element of the crime of embezzlement of public funds. The behavior of the defendant Liu Mengge in this case did not infringe on the right to use public funds of the hospital, and did not constitute the crime of embezzlement of public funds.
The essence of the violation of the right to use in the sense of the Criminal Law is that the behavior of the perpetrator prevents the obligee from achieving the expected effect of using the property, and causes the obligee to use the property in vain.
The crime of misappropriation of public funds infringes the right to use public funds, which means that the public funds that should always be used for public purposes are attributed to individuals for personal use, making it impossible for the unit to effectively exercise ownership and power, and transforming the purpose of public use of public funds into the purpose of private use of public funds, that is, embezzlement of public funds "belongs to individuals" use".
In order to clarify the external manifestations of violations of the right to use public funds, the Interpretation of the Standing Committee of the National People's Congress on Paragraph 384 of Article [-] (Criminal Law of the People's ", etc. have made specific provisions on 'for personal use'.
In this case, when the county hospital’s 160 million yuan of drug and medical device funds were transferred out, the normal purpose of use was to pay off the hospital’s debts and eliminate the creditor-debt relationship between the hospital and the supplier arising from the sale of drugs and medical devices.
Although due to the behavior of the defendant Liu Mengge, the money that the county hospital should pay to the supplier has formally flowed to the company of the husband of the defendant Liu Mengge, but the intervention of the bank acceptance draft of the defendant's husband Tong Zhizheng's company was endorsed by the county hospital. The process of transferring to the supplier also achieves the effect of eliminating the creditor-debt relationship between the county hospital and the supplier, and achieves the purpose of replacing the hospital's drug and medical equipment funds for public use, that is, the county hospital's purpose of exercising the right to use public funds Did not fail.
In addition, as far as the function of repaying the debts of the county hospital is concerned, the bank acceptance draft endorsed by the defendant Liu Mengge's husband Tong Zhizheng's company and transferred to the supplier of the county hospital is exactly the same as the hospital paying the same amount of cash or a bank transfer check to the supplier.
Therefore, the defendant, Liu Mengge, obtained the prior consent of the supplier when paying the drug payment, endorsed and transferred the real bank acceptance draft by the county hospital for the payment of the drug payment, and then asked the accountant to issue an equivalent transfer check to her husband's company. During the process, the hospital as the payer to pay the drug payment is a one-way payment behavior or a debt settlement behavior. Whether the defendant Liu Mengge delivered the transfer check or the equivalent bank acceptance bill to the supplier of the county hospital, The final result is the settlement of the hospital's drug payment or the elimination of the debt, and the hospital's public funds will not be damaged or bear any risks due to the conversion of the payment method.
Therefore, we believe that Liu Mengge's behavior did not infringe the county hospital's right to use public funds, and his behavior was only a change of payment method, which only affected the time limit for the county hospital supplier to realize the payment stated in the acceptance bill.
Third, the possibility of restitution is the prerequisite for the crime of embezzlement of public funds.The crime of misappropriation of public funds is the act of state functionaries taking advantage of their positions to misappropriate public funds for personal use.
What the perpetrator infringes is the use right as the core, including the unit's interests in public property, including the right of possession and the right of income.
Although the above three kinds of rights and interests belong to the power of ownership, the behavior of this crime does not fundamentally shake the complete ownership of public property.The crime of misappropriation of public funds, which is "return what is stolen", is fundamentally different from the crime of embezzlement, which "does not return what is swallowed".
Subjectively, what the perpetrator has is the intention of temporary use and temporary possession, and plans to return it in the future after using it for a certain period of time.The intention of restitution is very clear, and the subjective intention of "preparing to return" must run through the entire process of the behavior. If there is an intention of permanent possession or embezzlement later, even if the behavior only has the intention of misappropriation at the beginning, criminal responsibility should be investigated for the crime of embezzlement.
Objectively speaking, if the crime of embezzlement of public funds is established, the embezzled public funds also have the possibility of restitution. The "Criminal Law" stipulates that those who embezzle a large amount of money and do not return it shall be given heavier punishment, which is intended to urge and encourage the perpetrators who commit the crime of embezzlement of public funds to actively return public funds and minimize the loss of public property. predicated on logic.Even if it is actually impossible to return after misappropriation due to objective reasons, there should be the possibility of restitution at the time of misappropriation.
In this case, the purpose of the county hospital’s disbursements is to pay the payables and settle the debts. This is the process of the county hospital’s funds flowing outward, and in fact the county hospital’s debts have indeed been repaid.
Therefore, objectively, there is no necessity or possibility for the money to be returned and reversed.Although the defendant, Liu Mengge, took advantage of his position to change the flow direction of the funds, his behavior of repaying debts with other forms of funds of the same amount instead, subjectively, it is impossible to temporarily use and return the funds to the hospital in the future Neither did he have the intention of embezzling the hospital's drug funds. "
The reason why Fang Yi brought up the crime of corruption in the third point is to prevent the prosecutors from relying on the crime of corruption in this case.Of course, if Prosecutor Gao really brought up the crime of corruption, he also has a countermeasure.
"To sum up, the main object of embezzlement of public funds protected by the Criminal Law is the owner's right to use and control public funds and the security of public funds.
In this case, Liu Mengge, the defendant, took advantage of his position to change the payment method of public funds out of the motive of facilitating the capital turnover of the company under the name of her husband Tong Zhizheng in the process of paying off the debts of the county hospital. His behavior did not control the county hospital. It has no substantial impact on the right to use public funds, nor has it caused the risk of loss of public funds, and has not violated the object protected by the crime of misappropriation of public funds.
We believe that the defendant Liu Mengge violated relevant financial disciplines by issuing bills, endorsement and other bills without having any basic relationship such as real transaction relationship and creditor-debt relationship.However, this behavior does not meet the nature and constituent elements of the crime of embezzlement of public funds, so the defendant should not constitute the crime of embezzlement of public funds. After Fang Yi finished speaking, he looked at Inspector Gao. (End of this chapter)
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