Lawyer's character

"The prosecutor will now speak." The presiding judge rolled his big eyes and looked at the prosecutor's seat.

"Presiding judge, judges, we believe that the facts found by the court of first instance are clear, the evidence is sufficient, the law is applied correctly, and the sentence is appropriate. We ask the court to reject the appellant's appeal request in accordance with the law. Over." said the male prosecutor.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“Regarding the defense opinion of the defender, we believe that according to the uniformity of terms in criminal law, the same term in the same legal article should generally have the same interpretation.

The "larger amount" in the two criminal categories of the crime of misappropriation of funds is in the same clause of the same crime and should be interpreted in the same way.

Since the starting point of "larger amount" in "larger amount, not repaid for more than three months" and "larger amount, conducting profit-making activities" are both 100,000 yuan, then in the same crime of "larger amount not returned" The "larger amount" should also be set at 100,000 yuan as the starting point for sentencing.

Therefore, we believe that the appellant Yun Qi misappropriated 150,000 yuan of funds for investment and has not been able to return the misappropriated funds. His behavior was determined to be "non-refundable for a large amount", which is consistent with the facts and should be delayed for more than three years and ten years. The following was sentenced to fixed-term imprisonment. Therefore, the sentencing in the first instance was appropriate. "The male prosecutor said.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

"Okay, based on the prosecutor's defense opinions and response, the defender issued the following defense opinions:

The defender believes that the “larger amount” in the two criminal categories of misappropriation of funds should not be interpreted in the same way for the following reasons:

According to the provisions of Article 271 of the Criminal Law (2015 Amendment), the crime of misappropriation of funds is divided into two sentencing levels.

The first sentencing level is: misappropriating the funds of the unit for personal use or lending to others, 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 the amount is for profit-making activities, or Anyone who engages in illegal activities shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

The second sentencing level is: those who misappropriate a huge amount of the unit's funds, or who do not return a large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

According to the provisions of Article 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" (hereinafter referred to as the "Interpretation"), the starting point for the amount of "large amount" in the crime of misappropriation of funds , executed in accordance with the provisions of this Interpretation on the "larger amount" amount standard for the crime of misappropriation of public funds.

Article 6 of the "Interpretation" stipulates that anyone who misappropriates public funds for personal use, conducts profit-making activities or fails to repay it for more than three months, and the amount exceeds 50,000 yuan, shall be deemed to have committed a crime as stipulated in the first paragraph of Article 384 of the Criminal Law. 'A larger amount'.

According to the provisions of the "Interpretation", in the first sentencing level for the crime of misappropriation of funds, whether it is 'misappropriation of funds for personal use or lending to others, the amount is relatively large' or 'misappropriation of funds for profit-making activities, the amount is relatively large', The starting point standard for "larger amount" here is twice the "larger amount" standard for embezzlement of public funds, that is, 50,000 yuan multiplied by two, which is 100,000 yuan.

Generally speaking, according to the uniformity of terms used in criminal law, the same term in the same legal article should indeed have the same interpretation. However, for the crime of misappropriation of funds, the defender believes that if the "larger amount" in the two sentencing grades is given the same explanation, it will not only violate the principle of commensurate crime and punishment, but also violate the original intention of the above-mentioned "Interpretation".

According to the provisions of Article 6 of the "Interpretation", 'misappropriation of public funds without refund, and the amount is more than one million yuan but less than two million yuan' shall be deemed as the first crime of Article 384 of the Criminal Law (Crime of Misappropriation of Public Funds) The "serious circumstances" stipulated in this paragraph are the conditions for upgrading the statutory penalty.

The defender believes that compared with the crime of misappropriation of funds, the former is a misdemeanor and the latter is a felony. The situation of 'misappropriation without return' is an upgrading condition for the sentencing level in the above two crimes. Therefore, the upgrading condition of 'misappropriation without return' in the crime of 'misappropriation of funds' should be subject to a higher amount standard, and should be in accordance with the above-mentioned "Interpretation" Article 6 stipulates that the double calculation upgrade standard for "the amount is more than one million yuan but less than two million yuan" is equal to more than two million yuan but less than four million yuan.

If the crime of misappropriation of funds, which is a condition for upgrading the criminal file, is to be determined according to the "larger amount" (i.e. 100,000 yuan) in the first criminal file, the statutory penalty for the crime of misappropriation of funds will be The upgrade standard is 100,000 yuan, but the statutory penalty upgrade standard for the crime of misappropriation of public funds (misappropriation is not refundable) is 1 million yuan. The crime and punishment are obviously not suitable, and it also violates the legislative intention of stricter management of officials.

In addition, the phenomenon of different interpretations of the same term in the provisions of the Criminal Law is not surprising in judicial practice. Take the term "violence" that appears frequently in the Criminal Law as an example. "Violence" includes violence that causes death or serious injury, violence that causes minor injuries or minor injuries, and violence that only causes temporary physical pain without causing any harm in daily life. Violence of any substantial harm.

However, when sentencing "violence" in specific criminal acts, the harm degree of "violence" should still be reasonably matched with the corresponding legal punishment according to the principle of compatibility of crime and punishment.

Similarly, in the crime of misappropriation of funds, since the "larger amount" falls into two sentencing brackets, conclusions drawn based on the same interpretation will inevitably lead to incompatible crimes and penalties, violating the original intention of the legislation.

In this case, the appellant Yun Qi misappropriated 150,000 yuan and did not return it. The court of first instance determined that "the amount is relatively large and will not be returned." The sentencing option in the second sentence, that is, between three years and ten years, is a violation of the misappropriation of funds. Incorrect interpretation of the crime amount standard.

The defender believes that Yun Qi’s misappropriation of 150,000 yuan does not meet the standard of “non-return for large amounts” in the second sentence, and should be sentenced in the first sentence.

In summary, the court is requested to change the sentence of the appellant Yun Qi to six months in prison in accordance with the law. complete! "Fang Yi said.

…

All the procedures that need to be followed have been carried out, and everything that needs to be said in court has been said. Fang Yi has made his best efforts. As for the outcome, no one except the judges of the collegial panel knows.

The court was adjourned for ten minutes. The atmosphere in the court was a bit depressing. Yun Zhenxing wanted to come to Fang Yi to ask about the situation, but seeing everyone sitting still and the bailiffs wandering back and forth, he ultimately did not leave the auditorium.

At the prosecutor's table opposite the defense table, two prosecutors lowered their heads and muttered something in a low voice. The distance was too far for Fang Yi to hear.

Soon, ten minutes passed and three judges entered the court.

"...Please ask the bailiff to bring the appellant Yun Qi to court." Seeing Yun Qi being brought into the court by the bailiff, the presiding judge said confidently: "This case has been reviewed by the collegial panel and a verdict has been formed. Based on the opinions of the prosecution and defense, combined with this case Based on the facts and evidence of this case, this court’s analysis of the focus of the dispute is as follows:

…The appellant Yun Qi in this case misappropriated 150,000 yuan of his unit’s funds, which did not meet the amount standard of “larger amounts not to be returned” in the crime of misappropriation of funds, but only met the standard of “larger amounts for profit-making activities”, so this behavior was The sentence should be within the range of fixed-term imprisonment of not more than three years or criminal detention.

The original sentence of a fixed-term imprisonment of not less than three years but not more than ten years for this act was an error in the application of law and the sentencing was inappropriate and should be corrected. The verdict is as follows:

1. Uphold the original judgment regarding the recovery of illegal gains;

2. Revoke the judgment regarding the sentencing and compensation of the appellant Yun Qi;

3. The appellant Yun Qi was guilty of misappropriating funds and was sentenced to six months in prison;

4. Ordered to refund the misappropriated funds (compensation has already been refunded). "

After hearing the final revised sentence, Yun Qi, who was standing below, relaxed. He was sentenced to six months in prison, which was offset by the time he had already been detained. He could be released in another month. How could Yun Qi not relax? .

Yun Zhenxing also breathed a sigh of relief. His son's sentence was reduced from three years to six months. What else was he dissatisfied with? Do we have to change the verdict to not guilty? He is a sensible person, and it is impossible for his son to be acquitted if he commits a crime.

Fang Yi was a little surprised. He didn't expect that the court actually adopted his sentencing suggestion and sentenced Yun Qi to six months in prison.

In fact, if you think about it carefully, it makes sense. After all, Yun Qi’s family actively refunded the misappropriated funds, and Yun Qi actively cooperated with the investigation after being brought to justice. Yun Qi was sentenced to a minimum sentence of three years. Taking into account the circumstances of the case, the court of second instance would also consider applying the lower sentence in the first category (imprisonment of less than three years or criminal detention). However, Yun Qi has been detained for more than four months. However, the application of criminal detention (one month to six months) seems too loose and the term is inappropriate, so it is more appropriate to apply the minimum term of fixed-term imprisonment (six months).

After the verdict, in order to express his gratitude, Yun Zhenxing specially invited Fang Yi to have a meal at the best restaurant in the city, and everyone kept him company. Fang Yi couldn't refuse the hospitality. Considering that he had to drive back in the afternoon, he didn't drink.

Until Fang Yi drove out of the hotel and embarked on the return journey, the big red envelope promised by Yun Zhenxing was not fulfilled. Fang Yi couldn't help but sigh: I really can't believe everything the person said! !

When the dawn covered the earth, the refreshing air outside the window continued to flow into the room through the open window, which made Fang Yi, who was sleeping soundly on the big wooden bed, feel a bit of coolness. He opened his eyes and glanced at the electronic alarm clock on the bedside. , five forty. Fang Yi stretched, then lay on the bed and stared at the ceiling in a daze. His physical strength was really not as good as before in middle age.

When I drove home yesterday, it was not yet dinner time. Fang Yi, who had been tired for a day, put on his big pants and vest, washed his face, and then went to the small restaurant downstairs to have a rice bowl. When he returned to his residence, he wanted to read for a while, but within a minute of lying on the bed, his eyelids became heavier and heavier, and he soon began to snore.

Fang Yi's daze was interrupted by the gurgling sound in his stomach.

In the morning, Fang Yi came to the law firm and was holding a teacup to make tea when Huang Yuanchao walked over quickly.

"Old Fang, do you have any plans for tomorrow and the day after tomorrow?" Huang Yuanchao asked.

"Let me take a look!" Fang Yi put down the tea cup and flipped through the calendar: "It's okay, there are no arrangements. What's wrong?"

"We have some clues about the client I told you last time. Just for a day or two, you and Ma Yi will go to the Northeast with me and come back in two or three days." Huang Yuanchao said.

"Your client is in the Northeast?" Fang Yi asked in surprise.

"No, his company is in the city, but his hometown is in the Northeast. His mother was admitted to the ICU before. Didn't they disappear a few days ago? I have to do business in my hometown, and my client went back to his hometown. I'm going to go there. Take this opportunity to connect with each other," Huang Yuan said.

"Old Huang, is it appropriate to go at this time?" Fang Yi was hesitant and thought to himself: Why do you want to join in the fun with Lao Huang when he is doing nothing?

"What's appropriate or inappropriate these days? I heard that several law firms have already sent people to the Northeast. It's already too late for me." Huang Yuanchao said seriously.

"Ah! How evil! What a huge customer this is!" Fang Yi said in shock.

When the wife of the CEO of Defa Group passed away, he followed Sun Zhengyi to attend the funeral and solicited business, but failed, and left without meeting the real owner, who was Zhou Shen, whom Fang Yi knew at that time.

This time Lao Huang proposed to go to the Northeast to attend a funeral to promote business. It was such a long distance and a trip would cost a lot of money. If the rightful owner avoided seeing him and the trip was in vain, he would lose face in other provinces!

"Let's put it this way, the annual legal fees for their company's external legal consultant are not high, only 100,000 yuan, but they have many non-litigation projects and some litigation projects. This company is one of those companies with great potential and great development. Fast technology company.

The relationship was almost done before. This is a business developed by me personally. I have agreed with the boss that if it can be signed, it will be handed over to the regular team of the team for maintenance. However, all the business generated by this company will belong to me. Here, I’ll pay for the attorney’s fees!

Their company's legal counsel is about to expire, and this is the last step! Huang Yuanchao said with a smile.

"Well! It's worth a trip, so what are we going to do?" Fang Yi's eyes lit up and he asked.

If he can really sign a contract with this group company, there may be a criminal case in the future. With his relationship with Lao Huang, the criminal case will definitely be assigned to him first. Fang Yi estimated that Ma Yi had similar ideas to his own. There must be a few among the company's executives who were morally corrupt and wanted divorce. If they caught one or two cases a year, they could collect a lot of money.

"Of course it's a big job. Just give me your support and support, and everything else is up to me. I've paid for all the travel expenses. It's good to eat and drink. You can treat it as a trip. Three days at most!" Huang Yuanchao said with a smile.

"Ma Yi and I are the second generals of Hengha!" Fang Yi said.

"Yeah! That's what I mean. Mainly because I don't have the confidence to go alone, and there are many law firms watching. It's easier to do things with more people." Huang Yuanchao nodded.

In the afternoon of that day, Huang Yuanchao booked tickets for Fang Yi and Ma Yi. Early the next morning, the three of them took a taxi to the train station and got on the train to Northeast China.

It was already late August, and we were taking the train all the way north. The weather became cooler the further we went. It was already afternoon when the three of them walked out of the Harbin Railway Station. The sun was emitting soft light in the west. As soon as they left the train station, the autumn wind blew by. Fang Yi felt chilly and immediately put on his casual jacket.