Lawyer's character

"Presiding judge and judge: We believe that... the facts found in the first instance are clear and the evidence is indeed sufficient. The court of first instance accurately characterized the appellant's behavior in this case. The appellant's behavior constitutes the crime of corruption. Please reject the appellant's appeal request in accordance with the law. Finished." The male prosecutor expressed his opinion.

"The prosecutor can respond to the defense opinions of the defender." The presiding judge performed his duties.

"Okay, presiding judge, regarding the defender's defense, we would like to make the following main points:

We believe that the national subsidy funds for home appliances going to the countryside are state-owned property. The appellant Lu Wei was entrusted by the state agency to manage state-owned property. He performed his duties diligently, but he took advantage of his position to defraud state-owned property. The behavior of the appellant Lu Wei constituted Embezzlement. complete. ” the prosecutor responded.

The auditorium was full of people. In addition to Lu Wei's family members, many people came here specially to listen, because the city's procuratorate filed more than 20 cases with Lu Wei in the court, all of which were related to Lu Wei's case. The first-instance verdict issued by both front and rear feet.

Among the appeal cases, Lu Wei's case was the first to be heard and served as an example. Therefore, the families of those involved were very concerned about the outcome of Lu Wei's case.

"The defender can respond to the prosecutor's opinion." As the presiding judge's voice fell, everyone in the auditorium looked at Cao Yongzheng and Yun Qiao.

“Based on the prosecutor’s defense opinions and responses, we issue the following defense opinions:

Although according to the relevant regulations of the General Office of the Provincial People's Government, outlets participating in the sales of home appliances to the countryside should sign a power of attorney with the county and township financial departments, signing such a power of attorney does not mean that each sales outlet is entrusted by the local financial department. The specific reasons for managing state-owned property are as follows:

1. The above entrustment does not mean that the financial department will entrust the administrative power of reviewing and disbursing subsidy funds for home appliances to the countryside to sales outlets.

First, the home appliance distribution outlets did not carry out the review and advance the subsidy funds for home appliances to the countryside in the name of the financial department, and the effects of their review and advance payment had no impact on the review of the financial department.

According to relevant regulations, after the township (town) finance office receives the settlement materials from the sales outlets, it still needs to further verify the relevant certificates, identities and purchase information of the purchasing farmers, and review the advance payments by the sales outlets. On this basis, the Settlement of subsidy funds.

For materials that do not meet the conditions, the financial department shall not settle the matter, and the losses incurred shall be borne by the sales outlets themselves.

This regulation shows that the review of sales outlets is only a formal review, and the subsidies advanced are only fictitious payments. The substantive review and release rights of home appliances to the countryside subsidy funds are still in the hands of the financial department.

Second, in practice, various local authorities have express provisions on the final review and confirmation of subsidy funds for home appliances going to the countryside. For example, this city clearly stipulates that the final review power lies with the county finance department.

It can be seen that although the state has delegated preemptive review to home appliance sales outlets, the final review and confirmation power has not been delegated.

2. If it is believed that the home appliance seller is a person who is "entrusted to manage and operate state-owned property", it will also cause confusion in the identification of his identity.

According to the provisions of relevant documents, home appliance sellers not only sign a power of attorney with the financial department, but also sign a "Power of Attorney for Applying for Subsidy Funds for Home Appliances Going to the Rural Areas for Advances and Direct Subsidies" with farmer consumers when distributing subsidy funds. The content is that farmers consume The person has received the subsidy funds from the sales outlet in advance, and the sales outlet is now entrusted to go to the financial department to declare and receive the subsidy funds for home appliances going to the countryside on his or her behalf.

Judging from the fact that home appliance sellers are entrusted by both the financial department and farmers and consumers, it further shows that home appliance sales outlets are not personnel entrusted by state agencies to manage and operate state-owned properties.

To sum up, as a home appliance dealer, Lu Wei is neither a state employee nor a person entrusted by state agencies to manage state-owned property. He does not have the subject identity requirements to constitute a crime of corruption. complete. "Cao Yongzheng responded.

"Does the prosecutor need to continue to respond to the defender's defense opinions?" the presiding judge asked.

"It is necessary to continue to respond." The prosecutor continued: "In response to the defender's response and defense, we believe that the nature of the behavior of the appellant Lu Wei as an agent to review and advance subsidies for home appliances to the countryside is an official act or an act based on The appellant took advantage of his position to embezzle relevant funds.”

"Does the defender need to continue to respond to the prosecutor's opinions?" the presiding judge asked.

"Yes, a response is needed." After Cao Yongzheng finished speaking, he looked at Yun Qiao.

Yun Qiao had just signaled him, and it was up to her to respond this time.

"In response to the prosecutor's defense opinions and responses, we believe that what Lu Wei was engaged in was a kind of labor service, not official behavior or official behavior.

The "Minutes of the National Court Symposium on Trial of Economic Crime Cases" mentioned by the defender before has relatively clear provisions on the understanding of 'engaging in official duties'.

According to the provisions of the minutes, ‘engaging in public service means performing organization, leadership, supervision, management and other duties on behalf of state agencies, state-owned companies, enterprises, institutions, people’s organizations, etc. ’

‘Official duties mainly include public affairs related to official powers and official activities of supervising and managing state-owned property. For example, if state agency staff perform their duties in accordance with the law, and directors, managers, supervisors, accountants, cashiers, etc. of state-owned companies manage and supervise state-owned property and other activities, they are engaged in official duties. Those labor activities and technical service work that do not have the content of authority, such as the work performed by salespersons, conductors, etc., are generally not considered official duties.

In this case, the audit conducted by Luwei’s home appliance sales outlets was only a formal audit. Moreover, this kind of review is more about collecting and summarizing materials. The act of first advancing and then receiving funds is similar to a kind of handling, but does not have authority or job content. This kind of review behavior is essentially a simple labor activity and does not have the nature of managing state-owned property.

After the sales outlets were entrusted by the financial department to conduct formal review and advance subsidy funds, they were entrusted by farmers to apply for state subsidy funds from the financial department on their behalf. The reason for this design is to simplify the process to the greatest extent and facilitate farmers, rather than Necessary for the exercise of administrative powers.

It can be seen that what Lu Wei used to obtain subsidies was the convenience of his labor service and the convenience of handling the transfer of subsidy funds. It did not have management or operational content, so it was not considered a convenience of his position.

To sum up, although the defendant Lu Wei was entrusted by the financial department to review the identity information and purchase materials of farmers, and advanced subsidy funds to farmers who met the purchase conditions when farmers purchased home appliances for rural areas, he was not based on the financial department’s Entrust the management and operation of state-owned properties.

During the sales process of home appliances going to the countryside, Lu Wei falsely claimed to have received national subsidy funds for home appliances going to the countryside for the purpose of illegal possession. His behavior was in line with the characteristics of the crime of fraud. His behavior does not constitute the crime of corruption, over. Yun Qiao said.

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