Lawyer's character

"Her reason is that the so-called enterprise refers to an economic organization established in accordance with the law for the purpose of profit and engaged in the production, operation or social services of goods. Although the machine processing factory of the victim unit was registered as an individual industrial and commercial household, the factory was actually registered as an individual business owner. It is operated and managed by an enterprise, has a relatively large number of employees, and has all the characteristics of an enterprise, so it should be regarded as an enterprise.

Attorney Zhou expanded the scope of “other units” stipulated in the first paragraph of Article 271 of the Criminal Law and understood it to include individual industrial and commercial households similar to the machine processing factory in this case. " Du Yong said.

"Well, my opinion is the same as yours. This case should be classified as embezzlement." After more than 20 minutes, Fang Yi put down the case file, thought for a while and said.

"Can you explain it to me? I still don't think clearly about some things." Du Yong humbly asked for advice.

“My understanding is this. According to the provisions of Article 271, Paragraph 1, of the Criminal Law, the crime of official embezzlement refers to the crime of official embezzlement when personnel of a company, enterprise or other unit take advantage of their position to illegally appropriate the property of their unit. For one's own benefit, the amount is relatively large.

It can be seen from this that the subject of the crime of job embezzlement should be the personnel of a company, enterprise or other unit. In my opinion, individual industrial and commercial households are regulated by the General Principles of the Civil Law (now replaced by the Civil Code) and are special civil subjects who engage in personal investment and business operations and bear liability with their personal property, and are not subject to the crime of official embezzlement. The reason is:

First, an individual business owner is different from the sole proprietorship mentioned in the Sole Proprietorship Law. It is not an enterprise.

Second, individual industrial and commercial households are different from natural persons in terms of civil law. Their most significant feature is the investor. Individual industrial and commercial households can be invested and operated by individual citizens or by family members.

If it is an individual investment and operation, the individual industrial and commercial household should be regarded as an individual in the sense of criminal law; if it is a family investment and operation, it cannot be completely regarded as a unit in the sense of criminal law.

Third, a unit in the sense of criminal law must be a social organization established in accordance with the law, with certain funds and property, and relative independence (independence of assets, business, personnel, finance, and organization).

Although an individual industrial and commercial household is also a civil subject, it has all the characteristics of a natural person and does not have the organizational characteristics of a unit.

Therefore, in the sense of criminal law, individual industrial and commercial households are substantial individuals, not enterprises or units. Therefore, employees, helpers, and apprentices (regardless of their names) employed by individual industrial and commercial households cannot be the subject of the crime of job embezzlement.

Although the victim's human machine processing factory in this case is relatively large in scale and has a management style similar to that of an enterprise, it is still an individual industrial and commercial household and is still an individual in the legal sense.

Therefore, the driver employed by the processing plant is not the subject of the crime of occupational embezzlement, and his use of his position to embezzle the property of the factory does not constitute the crime of occupational embezzlement. "Fang Yi explained.

"Oh, when you say that, I become more enlightened." Du Yong nodded.

"In this case, the defendant Niu Shenyi did not use the method of secret stealing to take possession of the property owned by others. The essence of his behavior was to illegally take the property that he had temporarily kept for himself and refuse to return it.

The defendant Niu Shenyi, as a driver employed by an individual industrial and commercial machine processing factory, was entrusted with the responsibility of transporting the raw materials and products of the machine processing factory. This employment-entrustment relationship formed a substantial custody relationship between the two parties regarding the goods delivered. .

In other words, the defendant Niu Shenyi, as a delivery driver for individual industrial and commercial households, had the obligation to take custody of the goods on the vehicle. However, he illegally took possession of other people’s property that was kept on his behalf and escaped, refusing to return or hand it over. It violated the property ownership of the machine processing factory, so I believe that its behavior constitutes the crime of embezzlement. "Fang Yi continued to explain.

Since the case is being analyzed for the team members, it must be analyzed thoroughly. You cannot stop talking in the middle of the sentence. This is not conducive to the improvement of the professional level of the team members.

The professional strength of a team is not determined by the person with the highest professional level. The person with the lowest professional level will bring down the level of the entire team. Therefore, if Fang Yi wants to improve the professional level of his team and create a good reputation, he cannot hide his secrets.

The embezzlement case is a private prosecution case directly accepted by the People's Court, so the private prosecutor in this case is a machine processing factory. Although Du Yong also thinks that the defendant in this case should be guilty of embezzlement, he has never been clear about it, so he came to Fang Yi for advice. .

Half a month later, the court's decision once again confirmed Fang Yi's point of view.

The court held that the defendant Niu Shenyi illegally took possession of the private prosecutor's property worth 120,000 yuan, which was kept on his behalf. The amount was relatively large and he refused to return it. His behavior constituted the crime of embezzlement.

In accordance with the provisions of Article 270, Paragraph 1 and Article 64 of the Criminal Law, the verdict was that the defendant Niu Shenyi was guilty of embezzlement and sentenced to one year in prison; the seized stolen money of 70,000 yuan was returned to the private prosecutor.

Of course, this is all a later story, and Du Yong didn't know it at this time.

"How's Meng Guangda doing lately? Has he hit the back of his head because he was so busy?" Fang Yi asked with a smile.

"Brother Da is very hard-working. No matter how big or small the case is, as long as there is money to be made, he will take it." Du Yong commented objectively.

"Well, there are only three of you lawyers in our team. I will try my best to distribute the cases in a balanced manner. Don't worry, if there is a fat job, I will not hold on to it. As long as you are willing to do it, everyone will make money." Fang Yi smiled.

"Don't worry, we will work hard without you having to say anything." Du Yong replied.

Anyone who can be a lawyer is not stupid. If the boss has selfish motives and gives all the fat work to one person, or holds on to him, other lawyers will soon know, and it will not take long for the team to become disloyal, and the entire team will not be able to survive for a long time. No.

Fang Yi is fair on this point. First of all, he will not save money on fat work himself (his goal is to build a team, not just to make money himself). Secondly, he will not favor a certain lawyer within the team. He formed a clique, so everyone quite believed in him.

Of course, in Du Yong's opinion, there may be a small number of people in the team, and Boss Fang does not need to do this. In the future, the team will develop and there will be more lawyers. I don't know if Boss Fang can still maintain an equal footing. I can only take one step at a time. , at least for now everyone is quite satisfied.

Soon Shen Mingyuan's money laundering case came to court. Because the evidence provided by the prosecutor was very solid, Fang Yi could only plead guilty to a lesser crime. The prosecutor recommended that the court sentence Shen Mingyuan to five years in prison for money laundering.

Fang Yi believed that Shen Mingyuan constituted the crime of money laundering, but he played a supporting role in a joint crime and was an accessory. He should be given a lighter punishment according to law. He suggested that the court impose a six-month prison sentence on him.

After the trial, the presiding judge pronounced the verdict in court.

The court held that the defendant Shen Mingyuan was instructed by others to obtain illegal benefits, knowing that they were illegal gains from other people's smuggling crimes, and still collaborated with others to use the funds obtained from smuggling to invest in business operations to cover up and hide the illegal nature and source of the illegal gains. The behavior disrupted my country's financial management order and constituted the crime of money laundering.

The defendant Shen Mingyuan played a supporting role in the joint crime and was an accessory. He should be given a lighter punishment according to law. In accordance with the provisions of Article 191 (5) and Article 27 of the Criminal Law of the People's Republic of China, the verdict is:

1. The defendant Shen Mingyuan was convicted of money laundering and was sentenced to one year and six months in prison and fined RMB 320,000;

2. Confiscate defendant Shen Mingyuan’s illegally obtained BMW car.

After the first instance verdict was announced, the defendant did not appeal and the public prosecution did not protest, so the verdict became legally effective. Shen Mingyuan's case was settled in this way.