Lawyer's character

Yun Qi and his family were naturally dissatisfied with the loss of his wife and the loss of the army, so they came up with the idea of ​​​​appealing. Yun Qi's idea was very simple. He admitted the misappropriation of public funds, returned the embezzled money, and confiscated the dividends. He had nothing to say. But the court of first instance sentenced him to three years in prison, which he felt was too harsh.

"I now understand that the people in our village committee are just a bunch of white-eyed wolves. I was so kind to them at the beginning, but these guys don't want to think about how to repay me. They actually spend all day thinking about killing me and replacing me.

And that heartless accountant, he is from my family. If I hadn't promoted him and asked him to study finance on the job and obtain an accounting certificate, he would be a bad driver at most.

OK! Taking advantage of the general election, they actually stabbed me in the back and sent me in. None of them are fucking good. "Yun Qi cursed angrily.

At this moment, a young policeman came over. Yun Qi nodded hurriedly and bowed: "I know, you must keep your voice down. Don't worry!"

The little policeman gave him a few warnings and left.

"Who is the secretary in the village now?" Fang Yi asked.

"Who else could it be? My family, that shameless accountant!" Yun Qi said angrily. Now he can only squat here and sulk, and can't do anything else.

Fang Yi finally understood that this was internal strife!

"Lawyer Fang, do you think my sentence can be reduced in the second trial of my case?" Yun Qi asked.

"It's hard to say. I'm going to the Intermediate People's Court in the afternoon to review the case file. I can only make a judgment after reading the case file. In addition, it also depends on whether the procuratorate will file a protest. If the procuratorate files a protest, it will be even harder to say the outcome of your case." Fang Yi said.

"Well, I met that lawyer before. He is a lawyer from our local county. He said that there is little hope for a reduced sentence in the second trial of my case... Then I'll trouble you!" Yun Qi looked at Fang Yi and hesitated.

After Fang Yi left the detention center, he felt that he would just drive here this time. If he came by train, it would be more laborious, not to mention inconvenient, and would take longer.

At noon, Yun Zhenxing invited Fang Yi to dinner and learned about his son Yun Qi's situation inside. Because he had to go to the Intermediate Court to mark his papers in the afternoon, Fang Yi did not dare to drink at noon. After eating and resting for a while, Yun Zhenxing drove in front and Fang Yi drove behind, heading straight to the middle courtyard.

After going to the Intermediate Court to mark the papers in the afternoon, Yun Zhenxing wanted Fang Yi to stay overnight and treat him to a banquet in the evening. However, seeing that it was still early, Fang Yi declined Yun Zhenxing and drove back that day.

Fang Yi did not go to the law firm for the next two days. He stayed at home to analyze the case based on the case file materials and what he learned from the interviews. I read the case file no less than three times, my hair was as rough as a chicken coop, the ashtray on the table in the room was full of cigarette butts, and the whole room was filled with the smell of cigarette smoke.

Fang Yi found that the facts Yun Qi said were completely consistent with the evidence and charges provided by the procuratorate. However, the hard work finally paid off, and Fang Yi figured out the controversial points of the case.

There is no problem with the facts of the case. The problem lies in the understanding of the first-instance court and the procuratorate on the "larger amount" in the "larger amount will not be returned" stipulated in the relevant laws and regulations on the crime of misappropriation of funds.

Article 271 of the Criminal Law (2015 Revised Edition) stipulates that the staff of a company, enterprise or other unit, taking advantage of their position, misappropriate the funds of the unit for personal use or lend to others an amount of up to If the amount is relatively large and has not been repaid for more than three months, or if the amount is not more than three months but is relatively large, or if the amount is engaged in profit-making activities, or if the illegal activities are carried out, the person shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount of misappropriation of the unit's funds is huge or if a relatively large amount is not returned, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

The crime of misappropriation of funds stipulated in the above-mentioned legal provisions is divided into two penalty levels. The first penalty level is a fixed-term imprisonment of not more than three years or criminal detention; the second penalty level is a fixed-term imprisonment of not less than three years but not more than ten years.

Generally speaking, according to the uniformity requirements of criminal law terms, the same term in the same legal article should generally have the same interpretation.

As a result, the court of first instance determined that in the second sentence, the "larger amount" in the "non-refundable amount" as a condition for upgrading the statutory sentence should be consistent with the "larger amount" in the first sentence. .

Fang Yi deduced that the court of first instance held this view and therefore determined that the "larger amount" in the two criminal categories for the crime of misappropriation of funds should be consistent.

According to the provisions of Articles 6 and 11 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery", "larger amounts" are more than 100,000 yuan.

The amount of funds Yun Qi misappropriated was 150,000 yuan, which was not returned until the incident. Therefore, the court of first instance applied the sentence in the second sentence and finally sentenced Yun Qi to three years in prison.

This is both good news and bad news.

The good news is that after unremitting efforts, Fang Yi finally found the key point of the case. If he breaks through this key point, Yun Qi's case will be changed and the sentence will most likely be shortened.

The bad news is that in legal practice, courts in the same region, especially grassroots courts and corresponding intermediate courts, generally have the same or similar attitude towards the same legal issue.

The current sentencing attitude of the court of first instance most likely represents the attitude of the local court. If this is the case, basically there is no hope of changing the verdict in the second instance of this case.

Fang Yi's brows slowly wrinkled, and suddenly there was a burning pain in the index and middle fingers of his right hand. He hurriedly shook his hand, and the Hongmei cigarette that had burned to the butt was thrown to the ground.

Fang Yi stood up, stamped out the cigarette butt with his toes, sighed, and had no choice but to take a gamble. Of course, it depends on whether the parties concerned are willing.

In Fang Yi's view, the provisions of Article 271 of the "Criminal Law" (2015 Edition) belong to the problem of imprecise language expression that occurred in the formulation process of the criminal law (such an important law really should not be). All laws They are all formulated by people, and limited by the language ability of the framers (presumably taught by foreign language teachers), there will inevitably be some major or minor language expression problems, but these problems have brought many difficulties to judicial practice. The highest The hospital and the Supreme People's Procuratorate can only patch it up one patch after another.

(The "Criminal Law" (revised in 2020) changes the sentence description of the crime of misappropriation of funds to: Staff of a company, enterprise or other unit, taking advantage of their position, misappropriate the funds of the unit for personal use or lend to others, and the amount is relatively large. If the amount is not repaid for more than three months, or if the amount is not more than three months, but the amount is relatively large, and the person engages in profit-making activities, or engages in illegal activities, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount of the unit's funds is misappropriated in a huge amount, The offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the amount is particularly huge, he shall be sentenced to fixed-term imprisonment of not less than seven years.

This amendment has effectively avoided the problem of inconsistent understanding of "large amounts" in various courts in this case, and is conducive to unifying the judicial caliber. However, when this case occurred, the law on the crime of misappropriation of funds had not yet undergone the above modifications)