Case of misappropriation of funds by Shen
1. Basic facts of the case
Defendant Shen, male, 44 years old, was formerly the deputy director of a supply and marketing cooperative. He was arrested on 2 December 2000 on suspicion of embezzlement and misappropriation of funds and released on bail on 28 March 2001.
The people's procuratorate of a certain city initiated a public prosecution in the people's court of a certain city on the grounds that the defendant Shen X had committed the crime of misappropriation of funds. The indictment alleges: On October 6, 1994, the defendant Shen took advantage of his position as deputy director of a supply and marketing cooperative to lend 200,000 yuan of the company's funds to Gao, a self-employed entrepreneur, without going through the loan formalities in accordance with the law. On November 29, 1994, Gao returned 200,000 yuan to a supply and marketing cooperative.
On January 10, 1995, a supply and marketing cooperative reported the case to the public security organs, but the public security organs did not file a case. After review, the people's court of a certain city found that the time limit for prosecution had expired for defendant Shen's crime, and it should decide not to accept it in accordance with article 117 (5) of the "Supreme People's Court Interpretation on Several Issues Concerning the Enforcement of the Criminal Procedure Law of the People's Republic of China".
Second, the main issues
1. How to apply the law to the behavior of the staff of a collective economic organization before February 27, 1995, who took advantage of his position to embezzle a relatively large amount of his unit's funds to carry out profit-making activities?
2. Where the charges and statutory sentences are inconsistent before and after the revision of the Criminal Law, how is the time limit for prosecution determined?
3. Where the victim submits an accusation within the time limit for prosecution of a criminal act committed before September 30, 1997, and the public security organs should file a case but do not file a case, is it limited by the time limit for prosecution?
III. Grounds for the Trial
(1) The provisions of the first paragraph of article 272 of the 1997 Criminal Law shall be applied to defendant Shen's conduct, and criminal responsibility shall be pursued for the crime of misappropriation of funds
With regard to the behavior of the staff members of collective economic organizations who take advantage of their positions to embezzle the funds of their own units, the legislation of the mainland criminal law has undergone a process of evolution from the crime of embezzlement of public funds to the crime of misappropriation of funds. On January 21, 1988, the Standing Committee of the National People's Congress adopted the Supplementary Provisions on the Punishment of the Crimes of Corruption and Bribery (hereinafter referred to as the "Supplementary Provisions"), establishing the crime of embezzlement of public funds for the first time. The first paragraph of Article 3 of the Supplementary Provisions stipulates: "A state functionary, a staff member of a collective economic organization, or any other person who handles or manages public property, takes advantage of his position to embezzle public funds for personal use and carry out illegal activities, or misappropriates a relatively large amount of public funds for profit-making activities, or embezzles a relatively large amount of public funds and fails to repay them for more than three months, shall be guilty of embezzlement of public funds and shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; where the circumstances are serious, a sentence of five or more years imprisonment is to be given. Where the amount of embezzled public funds is relatively large and is not returned, it is to be punished as embezzlement. "On February 28, 1995, the Standing Committee of the National People's Congress adopted the Decision on Punishing Crimes in Violation of the Company Law (hereinafter referred to as the "Decision"), which eliminated non-state functionaries in companies and enterprises from the scope of the crime of misappropriation of public funds, and separately established the crime of misappropriation of funds. The 1997 Criminal Law basically followed the legal provisions on the crime of misappropriation of funds, but deleted the provisions in the Decision that if the amount of funds misappropriated from the unit is relatively large and not returned, it shall be punished as the crime of embezzlement, and at the same time, the crime of misappropriation of funds was divided into two sentencing levels, and the statutory maximum sentence for the crime of misappropriation of funds was increased to 10 years imprisonment. The defendant in this case, Shen's misappropriation of funds, occurred during the implementation period of the "Supplementary Provisions", and because the amount of funds he misappropriated was relatively large and he carried out profit-making activities, although there was no circumstance of non-return, according to Article 3, Item (2) of the "Answers to Several Questions Concerning the Enforcement of the (Supplementary Provisions on the Punishment of the Crime of Corruption and Bribery)" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate on November 6, 1989, "the amount of misappropriated public funds is relatively large and profit-making activities are carried out...... with the misappropriation of 50,000 yuan as the starting point for the amount of 'serious circumstances'", it shall be found that Shen X embezzled a relatively large amount of public funds to carry out profit-making activities, and the circumstances are serious, and in accordance with the provisions of Article 3, Paragraph 1 of the "Supplementary Provisions", he shall be "sentenced to fixed-term imprisonment of not less than five years". However, during the implementation of the Supplementary Provisions, the judicial authorities did not file a case against his acts, and did not pursue his actions until 1997, when the Criminal Law came into effect.
In accordance with the provisions of article 12, paragraph 1, of the 1997 Criminal Code, in principle, the law that is most favorable to the perpetrator from the time of his conduct to the time of his trial should be chosen to determine whether and how to pursue his criminal responsibility. For the defendant in this case, the legal provisions that may be related to him are: first, the law of his conduct - the "Supplementary Provisions"; the second is the post-act law - the "Decision"; The third is the 1997 Criminal Law. Compared with the three, the punishment in the "Decision" is the lightest. However, since the occurrence of this case and the intervention of the judicial organs were not related to the Decision, the defendant did not surrender during the implementation of the Decision, and the victim did not report the case during the implementation of the Decision, the Decision cannot be the law to be applied in this case. In this case, the law that is most favorable to the defendant can only be chosen between the Supplementary Provisions in force at the time of the criminal act and the Criminal Code of 1997 in force at the time the judicial authorities deal with the act. Because the people's court at the place where the case occurred before the relevant judicial interpretations of the Supreme People's Court were promulgated and implemented, the starting point for the crime of misappropriation of funds provided for in the first paragraph of Article 272 of the Criminal Law in 1997 was generally 300,000 yuan. Therefore, defendant Shen's misappropriation of 200,000 yuan of funds to lend to others for profit-making activities shall be found to be misappropriation of funds "for profit-making activities", and should be sentenced within the sentencing level and range of "up to three years imprisonment or short-term detention" in accordance with law. Obviously, in comparison, the application of the 1997 Criminal Law is a lighter sentence, and the application of the 1997 Criminal Law in this case is most beneficial to the defendant Shen.
(2) The statute of limitations for the criminal act of misappropriation of funds by the defendant Shen X is five years, as mentioned above, the defendant in this case, Shen X took advantage of his position to misappropriate his unit
The act of lending 200,000 yuan to others for profit-making activities, according to the law at the time of the act, that is, the provisions of Article 3, Paragraph 1 of the "Supplementary Provisions", is a "serious circumstance" of misappropriation of public funds, and the statutory maximum penalty is 15 years imprisonment, according to the provisions of Article 76 (3) of the Criminal Law of 1979, the time limit for prosecution is 15 years, and the defendant in this case, Shen's conduct did not exceed the time limit for prosecution, and criminal responsibility should be pursued in accordance with law. However, according to the law at the time of the disposition, that is, the first paragraph of Article 272 of the 1997 Criminal Law, defendant Shen's conduct was a "relatively large amount" of misappropriation of funds, and the statutory maximum sentence was three years, and according to the provisions of article 87 (1) of the 1997 Criminal Law, the time limit for prosecution was five years, and defendant Shen's conduct had already exceeded the time limit for prosecution, and his criminal responsibility could no longer be pursued in accordance with law. In this regard, how to determine the statute of limitations in this case?
We believe that the key to correctly determining the time limit for prosecution in this case lies in the understanding and application of the provisions of Article 12, Paragraph 1 of the Criminal Law. The essence of the principle of leniency as provided for in the first paragraph of Article 12 of the Criminal Law is that the principle of favoring the defendant should be adopted when pursuing criminal responsibility. This is by no means only reflected in conviction and sentencing, but should be reflected in all aspects that determine the defendant's criminal responsibility and the severity of the crime, such as the statute of limitations, voluntary surrender, meritorious service, recidivism, commutation, parole, and so on. This point is clearly stipulated in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Provisions on the Temporal Effect of the Criminal Law. Therefore, the 1997 Criminal Law should be applied to the conduct of the defendant Shen X in this case, and the time limit for prosecution is five years, and after five years, no further prosecution will be pursued. If it is held that the defendant should be convicted of the crime of embezzlement of public funds according to the law at that time, and the corresponding statutory maximum sentence is 15 years, and the time limit for prosecution is 15 years, and the following contradictions will occur: First, the crime of misappropriation of funds should be convicted of the crime, and the sentencing can only be considered within the sentencing level and range of "fixed-term imprisonment of less than three years or short-term detention", and it is obvious that the time limit for prosecution contradicts the provisions of Article 87 of the Criminal Law; Second, it is contrary to the legislative spirit in favor of the defendant embodied in the mainland criminal law in terms of time effect.
(3) Defendant Shen's conduct has exceeded the statute of limitations, and a decision should be made not to accept it in accordance with law
In this case, on January 10, 1995, within the time limit for prosecution, the victim unit, a supply and marketing cooperative, reported the case to the public security organs, but the public security organs did not file the case. According to the second paragraph of Article 88 of the Criminal Law of 1997, "Where the victim submits an accusation within the time limit for prosecution, and the people's courts, people's procuratorates, or public security organs shall file the case but do not do so, the time limit for prosecution is not to be applied. "So, does this provision of the 1997 Criminal Code apply to the present case? In this regard, Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Provisions on the Temporal Effect of the Criminal Law stipulates that "the perpetrator shall be liable for criminal acts committed before September 30, 1997,...... Where the victim submits an accusation within the time limit for prosecution, the people's courts, people's procuratorates, and public security organs shall file the case but do not file the case, and where the time limit for prosecution is exceeded, the provisions of article 77 of the Criminal Law before the amendment apply to whether or not to pursue the perpetrator's criminal responsibility. This provision clearly excludes the application of the second paragraph of Article 88 of the 1997 Criminal Law to this case, while Article 77 of the Criminal Law before the amendment provided that "those who evade investigation or trial after the people's courts, people's procuratorates, or public security organs have taken compulsory measures shall not be subject to the time limit for prosecution." In other words, in the 1979 Criminal Law, the circumstance of "not being subject to the limitation of the time limit for prosecution" is limited to the precondition of "evading investigation or trial after the people's court, people's procuratorate or public security organ has taken compulsory measures". In this case, since the public security organs did not file a case, there was no way to talk about taking compulsory measures, let alone Shen's evasion of investigation or trial. Therefore, for the criminal act of misappropriation of funds carried out by the defendant Shen X before September 30, 1997, and the victim files an accusation within the time limit for prosecution, and the judicial organs should have filed the case but did not file the case, they are still subject to the limitation of the time limit for prosecution, but where the time limit for prosecution has already been exceeded, their criminal responsibility must not be pursued in accordance with law.
In summary, the time limit for prosecution has expired, and the people's court shall decide not to accept it in accordance with the provisions of Article 117(5) of the "Supreme People's Court's Interpretation on Several Issues Concerning the Enforcement of the Criminal Procedure Law of the People's Republic of China".