Preface
The community owners' committee, that is, the owners' committee of the community, refers to the owners' general meeting executive body composed of the owners' representatives elected by the owners in the property management area, representing the interests of the owners through the implementation of the decisions of the owners' general meeting, reflecting the wishes and requirements of the owners to all parties in the society, and supervising and assisting the property service enterprises or other managers to perform the property service contract, and does not have independent legal personality. In life, the Owners' Committee is an autonomous organization with high social participation, and its members are elected by the general meeting of the owners of the community, representing the will and trust of the owners of the community. After the establishment of the Owners' Committee, its function is to implement the resolutions of the general meeting of owners of the community, assist all owners of the community to manage the public property and public income of the community, and assist the general meeting of owners of the community to select external business activities such as property in the community, so as to maintain the normal operation of the community. It can be said that the property committee of the community is a barrier to safeguard the interests of the owners of the community. However, in recent years, it has gradually been revealed that the members of the property committee of the community have seriously betrayed the trust of the owners of the community, and have taken advantage of the authority given by the owners of the community to seek personal gain, and have embezzled, misappropriated and stolen the common property of the owners of the community, which not only is suspected of constituting a criminal offense, but also has caused serious losses to the community and the owners of the community. The lawyer sorted out the following issues of crimes that may be suspected of by members of the community owners committee in the course of performing their duties.
#01
Members of the community business committee are suspected of embezzlement
The crime of embezzlement refers to the behavior of personnel of a company, enterprise or other unit who take advantage of their position to illegally occupy the property of their own unit, and the members of the business committee of the community use their authority to illegally occupy the common property of the community as their own in the following ways: 1. Using his authority, concealing the income, and embezzling the unrecorded public income of the community as already there. 2. Fictitious expenditures, false accounts, and private appropriation of the community's public revenues. 3. Without the consent of the owners' committee of the general meeting of the community, the distribution of the common income of the owners in the form of subsidies and hardship fees is appropriated.
(1) Case reproduction
1. Cases of using authority to conceal income, embezzlement and illegal possession of unrecorded community public revenues
Case of Shen Moumou's crime of embezzlement [(2017) Ji 0426 Xingchu No. 111]
Facts of the case:
From September 2013 to early 2014, defendant Shen Moumou served as the deputy director of the Jinyuan Community Owners' Committee of Shexian County and presided over the work: 1. On October 8, 2013, without the knowledge of other members of the Jinyuan Community Owners' Committee of Shexian County, he privately leased the boiler room of the community's collective assets to Su Junmin and collected Su Junmin's three-year lease fee of 30,000 yuan. 2. From November 19 to 22, 2013, the central heating network fee of 9 owners of Jinyuan Community in Shexian County (70 yuan per square meter and 100 yuan per household of locking valve) was collected for a total of 73,100 yuan, and it paid 41,256.8 yuan and 630 yuan for 9 households of locking valve in Shexian Longhui Heating Company (40 yuan per square meter), and the remaining 31,213.2 yuan was retained by the community owners' committee. 3. In October 2013, it collected a total of 14,800 yuan from the property fees of 74 owners in Jinyuan Community (200 yuan per household). The above three items totaled 76,013.2 yuan, Shen Moumou paid 500 yuan to He Moumou 1 (Shen Moumou was looking for a heating pipe valve repairman during the district heating period) in the winter of 2013, and the remaining 75,513.2 yuan Shen Moumou did not hand over to the Jinyuan Community Owners Committee of Shexian County, and he took the money privately for personal consumption, and Shen Moumou's whereabouts were unknown at the end of December 2013.
Referee Result:
Defendant Shen XX, as the person in charge of the Jinyuan Community Owners Committee of Shexian County, took advantage of his position to take possession of the collective funds as his own, and the amount was relatively large, and his conduct constituted the crime of embezzlement in public office. Defendant Shen Moumou illegally embezzled more than 75,000 yuan of a number of collective funds, causing chaos in the operation of the community; After the incident, he paid nearly 10,000 yuan to Zhang, a property service personnel; During the trial, defendant Shen XX had a good attitude in admitting guilt. The above circumstances are to be comprehensively considered by this court when sentencing. In accordance with the provisions of Article 271 of the Criminal Law of the People's Republic of China, the judgment is as follows: Defendant Shen XX committed the crime of embezzlement in public office and was sentenced to one year imprisonment. 2. Cases of fictitious expenditures, false accounts, and private division of community public revenues
Case of Dong Moumou's Embezzlement of Duties [(2020) Zhe 0109 Xingchu No. 1158]
Facts of the case:
In December 2014, through the owner's own election, the defendant Dong Moumou began to serve as the first director of the Owners Committee of the Southeast Huacheng Mingyuan Community, Xinjie Street, Xiaoshan District, Hangzhou. During his tenure of office, defendant Dong XX took advantage of his position as a person who handled and kept the money of the business committee to privately deposit the collected community store rent, deposit, property maintenance fund and other common funds of the owners into his personal account or into a designated account in accordance with his instructions, and in addition to using them for community public expenditures, defendant Dong XX used false expenditures and other means to use some of the funds for personal investment and consumption, embezzling a total of about 270,000 yuan of funds.
Referee Result:
Defendant Dong XX, as a member of another unit, took advantage of his position to illegally take possession of the unit's property for himself, and the amount was relatively large, and his conduct constituted the crime of embezzlement in public office. The prosecution was convicted of the charge. Defendant Dong XX voluntarily surrendered after the case was discovered, and truthfully confessed his crimes, and has returned the stolen money, so he may be given a lighter punishment. The public prosecution's sentencing recommendation is appropriate and is to be adopted. Accordingly, in accordance with the provisions of Article 271, Paragraph 1, Article 67, Paragraph 1, Article 72, Paragraph 2 and Paragraph 3 of the Criminal Law of the People's Republic of China, the judgment is as follows: Defendant Dong XX committed the crime of embezzlement in public office and was sentenced to one year and two months imprisonment with a suspended sentence of one year and six months. 3. Without the consent of the owners' committee of the community owners' meeting, the owners' common income is privately appropriated in the form of subsidies and hardship fees.
Case of Xu's embezzlement of public office [(2019) E 0202 Xingchu No. 108]
Facts of the case:
Between September 2013 and September 2018, while serving as the director of the Owners Committee of the Aoshan Cihu Tianxia Property Area in Huangshigang District, Huangshi City, the defendant Xu took advantage of his position as the owner of the community to privately occupy part of the public property that belonged to all the owners of the community in the form of subsidies and hardship fees without making it known to all the owners. After auditing, Xu embezzled 88,100 yuan from it.
Referee Result:
Defendant Xu took advantage of his position to illegally occupy the public property of the owners of the community totaling 88,100 yuan, a relatively large amount, and his conduct constituted the crime of embezzlement. The prosecution was convicted and confirmed by the court. Where the defendant can truthfully confess the facts of his crime after being brought into the case and is willing to accept punishment, he may be given a lighter punishment. They will return all the stolen money and obtain understanding, and may be given a lighter punishment as appropriate. Where the defendant has repeatedly embezzled public property and has a criminal record, he may be given a heavier punishment as appropriate. The prosecution's sentencing recommendation is appropriate. The defender's defense opinion that the defendant truthfully confessed, admitted guilt and accepted punishment, did not cause serious consequences, and actively returned the stolen goods in full and obtained forgiveness, the court accepted it and gave a lighter punishment or a lighter punishment as appropriate. In accordance with the provisions of Article 271, Paragraph 1 and Article 67, Paragraph 3 of the Criminal Law of the People's Republic of China, Article 201 of the Criminal Procedure Law of the People's Republic of China, and Article 11 of the Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery, the judgment is as follows: Defendant Xu X committed the crime of embezzlement in public office and was sentenced to six months imprisonment.
(2) Links to laws and regulations
Where the staff of a company, enterprise, or other unit takes advantage of their position to illegally take possession of the unit's property, and the amount is relatively large, they are to be sentenced to up to three years imprisonment or short-term detention and a concurrent fine; where the amount involved is huge, a sentence of between three and ten years imprisonment and a concurrent fine is to be given; where the amount is especially huge, the sentence is 10 or more years imprisonment or indefinite imprisonment and a concurrent fine. "Where the amount of embezzlement or bribery is between 30,000 and 200,000 RMB, it shall be found to be a 'relatively large amount' as provided for in paragraph 1 of Criminal Law article 383, and a sentence of up to three years imprisonment or short-term detention and a concurrent fine shall be given in accordance with law. ": "The starting point for the amount of "relatively large amounts" and "huge amounts" in the crimes of accepting bribes by non-state functionaries as provided for in article 163 of the Criminal Law and the crimes of embezzlement in public office as provided for in article 271 is to be implemented in accordance with the two and five times the amount standards provided for in this interpretation for the crimes of accepting bribes and embezzlement. "Where the convenience of one's position is taken advantage of to illegally embezzle the property of that unit, and the amount of the crime reaches the starting point of 10,000 yuan for a 'relatively large amount', the starting sentence is to be determined within the range of four months short-term detention to six months imprisonment. On the basis of the starting sentence, the base sentence is to be determined for every increase of 5,500 yuan in the amount of the crime, which is increased by one month to two months. ”
#02
Members of the community business committee constitute the crime of accepting bribes by non-state workers
During his tenure as the head of the Owners' Committee, the members of the Owners' Committee mainly involve the directors, deputy directors and other management personnel of the owners' committees, and use their power to control the tenants of the common property of the community and select the tenants of the common property of the community (e.g. storefronts, advertisements, etc.) to seek benefits for the illegal businessmen by collecting property from the illegal businessmen, kickbacks, favors, etc., to the detriment of the interests of the owners of the community.
(1) Case reproduction
Case of Defendants Tian and Li X for the Crime of Accepting Bribes by Non-State Functionaries [(2019) Su 0111 Xing Chu No. 853]
Facts of the case:
Between April and July 2018, defendants Tian and Li took advantage of their positions as directors and deputy directors of the community business committee to accept a total of RMB 110,000 from He Dongxu, the person in charge of the property of the fifth, sixth and seventh blocks of Tianrun City on two occasions, and each of them received 55,000 yuan.
Referee Result:
Defendants Tian X and Li, as the directors and deputy directors of the community business committee, took advantage of their positions to illegally accept other people's property and seek benefits for others, and the amount was relatively large, and their conduct constituted the crime of accepting bribes by non-state functionaries. Defendants Tian X and Li X jointly committed acts of accepting bribes, which is a joint crime. Defendant Tian X confessed, and defendant Li X turned himself in, and both may be given a lighter punishment in accordance with law. The facts are clear, the evidence is credible and sufficient, and the charges against defendants Tian and Li are established and should be supported. In accordance with the provisions of Article 163, Paragraph 1, Article 25, Paragraphs 1 and 3 of Article 67, and Article 64 of the Criminal Law of the People's Republic of China, the judgment is as follows: Defendant Tian X committed the crime of accepting bribes from non-state functionaries, and was sentenced to one year imprisonment with a suspended sentence of one year and two months. Defendant Li X committed the crime of accepting bribes from non-state functionaries and was sentenced to 10 months imprisonment with a one-year probation.
(2) Links to laws and regulations
"[Crime of accepting bribes by non-state functionaries] Employees of companies, enterprises, or other units who take advantage of their positions to solicit property from others or illegally accept property from others to seek benefits for others, and the amount is relatively large, shall be sentenced to up to three years imprisonment or short-term detention and shall also be fined; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine. Where a staff member of a company, enterprise, or other unit takes advantage of his position in the course of economic dealings, violates state regulations, and accepts kickbacks or handling fees in various names, which are owned by individuals, they shall be punished in accordance with the provisions of the preceding paragraph. "Where the amount of embezzlement or bribery is between 30,000 and 200,000 RMB, it shall be found to be a 'relatively large amount' as provided for in paragraph 1 of Criminal Law article 383, and a sentence of up to three years imprisonment or short-term detention and a concurrent fine shall be given in accordance with law. ": "The starting point for the amount of "relatively large amounts" and "huge amounts" in the crimes of accepting bribes by non-state functionaries as provided for in article 163 of the Criminal Law and the crimes of embezzlement in public office as provided for in article 271 is to be implemented in accordance with the two and five times the amount standards provided for in this interpretation for the crimes of accepting bribes and embezzlement. ”
#03
Members of the community owners committee are guilty of illegal misappropriation of funds
Where members of community business committees (mostly directors, deputy directors, cashiers, and accountants) take advantage of their positions to embezzle funds kept by the business committee to speculate in stocks, buy wealth management, or lend to others a relatively large amount that has not been repaid for more than three months, or if the amount is relatively large and for profit-making activities is carried out although it has not exceeded three months, or that illegal activities may constitute the crime of illegal misappropriation of funds.
(1) Case reproduction
Case of Ying XX's misappropriation of funds [(2016) Shaanxi 0113 Xingchu No. 554]
Facts of the case:
On April 28, 2014, without the consent of the supervision team of the Blum Shop Committee and the owners, the defendant Ying XX was elected to serve as the cashier of the Xiaozhai Blum Shop Owners Committee, and on April 28, 2014, he lent 11 million yuan to Gao and 500,000 yuan respectively in his personal name from the 1.5 million yuan contract money kept by his personal Everbright bank account (account number: 62×××17), and earned a total of 210,000 yuan in high interest, and 800,000 yuan had not been returned before the case. On June 24, 2014, a certain person's Chinese bank account (account number: 10×××08) received a contract payment of 900,000 yuan from Shaanxi Bishenghui Real Estate Co., Ltd., and without the consent of the Blum Shop Committee and the owner, the money was transferred to his Ping An bank account (account number: 62×××89) for the purchase of wealth management products on the same day. Ying XX was arrested by the public security organs on April 29, 2015. After the case, Ying XX's family returned 200,000 yuan of stolen money.
Referee Result:
Defendant Ying XX took advantage of his position to misappropriate his unit's funds to lend money to others and to carry out profit-making activities, and the amount was relatively large, and his conduct constituted the crime of misappropriation of funds. The People's Procuratorate of Yanta District, Xi'an City, charged the defendant with the crime of a certain institute. Defendant Ying XX truthfully confessed his crime at trial, and may be given a lighter punishment in accordance with law; After the case was discovered, his relatives actively returned part of the stolen money on their behalf, and may be given a lighter punishment as appropriate. In summary, in accordance with the provisions of Article 272, Paragraph 1, Article 67, Paragraph 3, and Article 64 of the Criminal Law of the People's Republic of China, the judgment is as follows: 1. The defendant should be sentenced to two years and one month imprisonment for the crime of misappropriation of funds.
(2) Links to laws and regulations
"[Crime of misappropriation of funds] Where a staff member of a company, enterprise, or other unit takes advantage of his position to misappropriate the unit's funds for personal use or to lend them to others, and the amount is relatively large and has not been repaid for more than three months, or although it has not exceeded three months, the amount is relatively large, and for-profit activities are carried out, or illegal activities are carried out, the sentence is up to three years imprisonment or short-term detention; Where the amount of funds embezzled from the unit is huge, or the amount is relatively large and is not returned, a sentence of between three and ten years imprisonment is to be given. "Where public funds are misappropriated for personal use to carry out illegal activities, and the amount is 30,000 yuan or more, criminal responsibility shall be pursued for the crime of misappropriation of public funds in accordance with article 384 of the Criminal Law; Where the amount is 3,000,000 RMB or more, it shall be found to be a "huge amount" as provided for in the first paragraph of Criminal Law article 384.
#04
Members of the community business committee are suspected of concealing accounting vouchers and accounting books
Where a member of a community business committee conceals or intentionally destroys accounting vouchers, accounting books, or financial accounting reports that should be kept in accordance with law in order to evade responsibility or influence the election of the next business committee, and causes serious consequences, it may constitute the crime of concealing accounting vouchers or accounting books.
(1) Case reproduction
Case of Song Moumou's crime of concealing accounting vouchers and accounting books [(2020) Zhe 0103 Xingchu No. 33]
Facts of the case:
From March to May 2013, the third owners' committee of Jindu Huating was voted to terminate its duties by the extraordinary meeting of the owners' general meeting, and the Jingjingyuan Community Neighborhood Committee, where the community is located, acted on behalf of the industry owners' committee, and was required to hand over financial vouchers, account books and other materials. The third owners' committee refused to admit the termination of its duties on the grounds that the recall procedure was illegal, and refused to hand over financial vouchers, account books and other materials. In December 2016, defendant Song Wen, the chairman of the third owners' committee, brought his financial vouchers, account books and other materials during his term of office back to his home in Xiacheng District, Hangzhou City without authorization and hid them. In June 2019, the Xiacheng District People's Court of Hangzhou Municipality filed a case for retrial of the lawsuit filed by the Fourth Owners' Committee of Jindu Huating for the return of financial vouchers, account books, official seals and other materials. On June 8 of the same year, the defendant Song Wen submitted a reply to the court for a retrial, still concealing the whereabouts of the relevant financial vouchers, account books and other materials of the third owners' committee. On June 28 of the same year, defendant Song Wen was arrested by the police at his home in Xiacheng District, Hangzhou City. On the same day, the police seized the bank journal, cash journal, financial vouchers, account books and other materials related to the third owners' committee of Jindu Huating in the room. After auditing, the amount of hidden accounting vouchers amounted to more than 10.1 million yuan. On July 17 of the same year, defendant Song Wen's wife, Yang, returned 180,000 yuan of stolen money to the public security organs.
Referee Result:
Defendant Song Wen concealed accounting vouchers and account books, the circumstances were serious, and his conduct constituted the crime of concealing accounting vouchers and account books. He was convicted of concealing accounting vouchers and account books and sentenced to six months' imprisonment.
(2) Links to laws and regulations
"[Crime of concealing or intentionally destroying accounting vouchers, accounting books, or financial accounting reports] Where the circumstances are serious, a sentence of up to five years imprisonment or short-term detention is to be given, and/or a fine of between 20,000 and 200,000 RMB. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph. ”
epilogue
The community owners committee is supposed to be a non-governmental self-government organization elected by the owners of the community to serve and make profits for all the owners of the community, and each member of the owners committee is responsible for the interests of all the owners of the community. However, there are still some members of the property committee who have betrayed the trust of the owners of the community and used their power to do some things that harm the interests of all the owners of the community by using their power for personal gain. Therefore, when the owners of the community encounter the above-mentioned similar members of the property committee, the lawyer suggests that in order to better protect the legitimate rights and interests of the owners of the community and actively fight against the lawbreakers, they should cooperate with the lawyers to organize evidence as soon as possible and report the case to the public security organs, so as to safeguard the legitimate rights and interests of all the owners and bring the lawbreakers to justice.
Source: Sichuan Mingju Law Firm This article is only for exchange and learning, if the source is marked incorrectly or violates your rights and interests, please inform us, we will delete it immediately.