Lawyer's character

"The prosecutor asked the appellant questions about the facts found in the first-instance judgment." The presiding judge looked at the prosecutor.

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"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

Let the appellant speak first. "The presiding judge said step by step.

Xu Qiguo is still using the same phrases. He keeps saying the same thing over and over again, "I don't commit a crime."

"The defender of the appellant Xu Qiguo spoke." The presiding judge continued the procedure.

"Presiding Judge, Judge: The defender believes that the appellant Xu Qiguo is not guilty of embezzlement of public funds for the following reasons:

According to the provisions of Article 384 of the Criminal Law, there are three objective behaviors that establish the crime of misappropriation of public funds, that is, state workers take advantage of their positions to misappropriate public funds for personal use and carry out illegal activities; or misappropriate public funds in a relatively large amount. Those who engage in profit-making activities; or those who misappropriate a relatively large amount of public funds and fail to repay them for more than three months.

First of all, according to the evidence in the case, the appellant Xu Qiguo lent public funds to the training school. After the training school received the money, it used the money for legitimate school-running activities. It was obviously not illegal activities.

Secondly, Xu Qiguo’s loan to the training school was an act of mutual rescue between units. Lending the village’s public funds to private schools for expansion work should not be considered a profit-making activity.

Finally, the appellant’s behavior did not constitute misappropriation of public funds for personal use.

According to the "Interpretation of the Standing Committee of the National People's Congress on Paragraph 1 of Article 384 of the Criminal Law of the People's Republic of China", the misappropriation of public funds "for personal use" is interpreted as three situations:

In the first case, public funds are used by myself, relatives, friends or other natural persons;

In the second case, public funds are used by other units in the name of an individual;

The third situation is when an individual decides to use public funds in the name of the unit for other units to use for personal gain.

Based on the evidence in this case, it can be seen that the user of public funds in this case is the unit (training school), so the first situation can be directly ruled out.

The two million yuan in land acquisition compensation that Xu Qiguo decided to lend was in the name of the village committee, not in the name of an individual.

Xu Qiguo had already lent 2 million yuan of public funds to the training school before the village committee held a meeting to consider lending 6 million yuan of public funds to the training school.

Although Xu Qiguo decided to lend the two million yuan personally and did not explain it to the village committee, it cannot be regarded as a loan in his personal name.

Because, judging from the vouchers for the two million yuan transfer, the payer stated that it was the village committee and the payee was the training school; judging from the receipts from the training school, it was also stated that the loan received was from the village committee; Judging from the procedures for handling the loan and repayment, Xu Qiguo did not lend public funds to the training school privately, but handled it through the village committee member and accountant. Throughout the loan process, the loan was always controlled by the village committee It will be in your name until repayment is due. When repaying the loan, the training school also returned the money directly to the village committee instead of returning it to Xu Qiguo personally.

It can be seen that there is no evidence that Xu Qiguo borrowed money from the training school in his personal name. An individual's decision to lend public funds and lending public funds in his personal name are two completely different concepts.

In this case, the village committee knew the whereabouts of the two million yuan in public funds and directly controlled the collection of the IOUs on schedule.

Therefore, Xu Qiguo’s behavior does not fall within the provisions of item (2) of the National Council of Senior Officials’ “Interpretation of Article 384, Paragraph 1 (Criminal Law of the People’s Republic of China)” of “giving public funds to other units in the name of an individual”. "situation. Therefore, the first-instance judgment was wrong in determining that Xu Qiguo had "misappropriated public funds to others in his own name."

After Xu Qiguo lent two million yuan, the village committee decided after discussion to lend six million yuan to the training school. Although Xu Qiguo did not explain the previously loaned two million yuan during the village committee's study, he still The two million yuan was actually included in the training school's performance of the contract, and there is no evidence that Xu Qiguo obtained personal benefits as a result.

Therefore, the appellant's behavior does not fall within the category of "an individual's decision to donate public funds to others in the name of the unit" stipulated in item (3) of the National Council of Senior Officials' Interpretation of Article 384, Paragraph 1 (Criminal Law of the People's Republic of China). Situations where the unit uses it for personal gain.

To sum up, Xu Qiguo's lending of public funds to the training school was neither 'misappropriating public funds to others in his own name' nor 'an individual decision to use public funds in the name of his company for other units to use for personal benefit'. Therefore, Xu Qiguo's personal The decision to lend public funds to the training school does not comply with the legislative interpretation of misappropriation of public funds for "personal use", and therefore does not constitute the crime of misappropriation of public funds. The court is requested to acquit the appellant in accordance with the law. complete. "Fang Yi expressed his defense opinion.

"The prosecutor will now speak," the presiding judge said.

"Presiding judge, judge: We believe that the first-instance court found the facts clearly, the evidence is sufficient, and the law is applied correctly. We ask the court to reject the appellant's appeal request in accordance with the law. Complete." The prosecutor spoke.

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

“Okay, regarding the defender’s defense, we mainly make the following points:

The borrower's training school is a private school and a school for profit-making activities. The appellant Xu Qiguo knowingly knew the nature of the training school and the purpose of the loan and still lent money to the training school was misappropriating public funds for profit-making activities.

According to Article 2, Paragraph 2 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Misappropriation of Public Funds", "Where public funds are misappropriated for use by others and the user knowingly uses them for profit-making or illegal activities, it shall be deemed as misappropriation by the misappropriator" We believe that the appellant's behavior complies with the provisions of "misappropriating public funds for profit-making or illegal activities" and constitutes the crime of misappropriation of public funds. complete. "The prosecutor said.

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

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

The essence of misappropriation of public funds is to use public funds for private purposes and seek personal gain. In this case, Xu Qiguo borrowed money from the training school mainly to seek benefits for the village committee, the ownership unit of public funds, and to solve the problem that the village committee had not withdrawn money for many years and was short of funds.

There is no evidence in this case to prove that Xu Qiguo subjectively lent public funds for personal gain, nor is there any evidence to prove that Xu Qiguo sought personal gain. This is essentially different from the misappropriation of public funds, which is the private use of public funds and the use of public funds for personal gain. , therefore his behavior does not constitute misappropriation of public funds for profit-making activities. complete. "Fang Yi responded.

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