Lawyer's character

Inspector Gao was frowning and listening attentively. Suddenly there was no movement from Fang Yi. He couldn't help but raise his head and saw Fang Yi looking at him, so he asked, "Is there any more?"

Prosecutor Gao read the case file yesterday afternoon and felt that there were some problems with the case. However, before he had time to think about it, he was notified that Fang Yi was coming to communicate the case. Followed by a hospital meeting, he never had time to think carefully. Analyze the case.

What Fang Yi said today happened to be the question that he had thought of yesterday. This was better and saved him a lot of brain cells. However, he always felt that what Fang Yi just said was still a little bit incomplete.

"And." After saying that, Fang Yi turned the lawyer's opinion to the next page and continued:

“2. Infringement of the unit’s right to use public funds is an essential element of the crime of misappropriation of public funds. The defendant Liu Mengge’s behavior in this case did not infringe on the hospital’s right to use public funds and does not constitute the crime of misappropriation of public funds.

The essence of infringement of the right to use in the sense of the Criminal Law is that the perpetrator's behavior prevents the right holder from achieving the expected effects of using the property, causing the right holder to fail in his purpose of using the property.

The crime of misappropriation of public funds infringes upon the right to use public funds by attributing public funds that should always be used for public use to personal use, preventing the unit from effectively exercising its ownership rights, and converting the purpose of public use of public funds into the purpose of private use of public funds, that is, misappropriating public funds "belongs to individuals" use".

In order to clarify the external manifestations of infringement of the right to use public funds, the "Interpretation of the Standing Committee of the National People's Congress on Paragraph 1 of Article 384 (Criminal Law of the People's Republic of China)" and the "Supreme People's Court's Notice on How to Determine that Misappropriation of Public Funds Belongs to Individuals" "Explanation of Issues Related to Use" and other provisions specifically stipulate "personal use".

In this case, when the county hospital’s 1.6 million yuan in medicines and medical equipment was transferred outward, its normal purpose was to pay off the hospital’s debts and eliminate the claims between the hospital and its suppliers arising from the sale of medicines and medical equipment. debt relationship.

Although due to the behavior of the defendant Liu Mengge, the money payable by the county hospital to the supplier formally flowed to the company of the defendant Liu Mengge's husband, the intervention of the bank acceptance bill of the defendant's husband Tong Zhizheng's company was endorsed by the county hospital. The process of transferring to the supplier also achieves the effect of eliminating the creditor's rights and debts relationship between the county hospital and the supplier, and serves the purpose of replacing the hospital's drug money and medical equipment money for public use. In other words, the county hospital's purpose of exercising the right to use public funds Didn't fail.

In addition, in terms of the role of paying off the debt of the county hospital, the endorsement of the bank acceptance draft from the company of defendant Liu Mengge's husband Tong Zhizheng to the county hospital's supplier is exactly the same as the hospital paying an equal amount in cash or a bank transfer check to the supplier.

Therefore, the defendant Liu Mengge, after obtaining the consent of the supplier in advance when paying for the medicine, transferred the real bank acceptance bill endorsed and transferred by the county hospital to pay for the medicine, and then asked the finance department to issue a transfer check for the same amount to her husband's company. During the process, the hospital as the payer to pay for medicines is a one-way payment or debt settlement. Whether the defendant Liu Mengge delivered a transfer check or a bank acceptance draft of equal amount to the county hospital's supplier, The final result is the settlement of the hospital's drug payments or the elimination of debts, and the hospital's public funds will not be damaged or exposed to any risks due to the conversion of this payment method.

Therefore, we believe that Liu Mengge’s behavior did not infringe on the county hospital’s right to use public funds. His behavior was only a change in payment method, which only affected the time limit for the county hospital’s supplier to realize the payment stated in the acceptance bill.

3. The possibility of restitution is the prerequisite for the crime of misappropriation of public funds. The crime of misappropriation of public funds is an act by a state employee who takes advantage of his position to misappropriate public funds for personal use.

What the perpetrator violated was the unit's interests in public property, which centered on the right to use, including the right of possession and the right to income.

Although the above three kinds of interests all belong to the power of ownership, the crime does not fundamentally shake the complete ownership of public property. The crime of misappropriation of public funds "has to be repaid", which is essentially different from the crime of corruption "what has been taken away will not be repaid".

Subjectively, the perpetrator has the intention of temporary use and temporary possession, and plans to return it in the future after using it for a certain period of time. The intention to return is very clear, and the subjective intention of "preparing to return" must run through the entire process of the act. If there is an intention to permanently possess or embezzle later, even if the intention of the act is only misappropriation at the beginning, the criminal liability should be investigated for the crime of corruption.

Objectively speaking, if the crime of misappropriation of public funds is established, the misappropriated public funds also have the possibility of being returned. The "Criminal Law" stipulates heavier penalties for those who misappropriate huge amounts and do not return them. It is intended to urge and encourage perpetrators who commit crimes of misappropriation of public funds to actively return public funds and minimize the loss of public property. This provision means that there is a possibility of restitution. as a logical premise. Even if it is actually impossible to return the property after misappropriation due to objective reasons, the possibility of return should exist at the time of the misappropriation.

In this case, the purpose of the county hospital's accounts was to pay accounts payable and to settle debts. This was a process of outward flow of funds from the county hospital, and in fact, the county hospital's debts were indeed paid off.

Therefore, objectively there is no necessity or possibility for the repayment of the amount. Although the defendant Liu Mengge took advantage of his position to change the direction of the flow of funds, his behavior of using other forms of funds of equal amounts to pay off debts was subjectively impossible for him to temporarily use and return the funds to the hospital in the future. He also had no intention of embezzling the hospital's medicine money. "

The reason why Fang Yi raised the crime of corruption in the third point was to prevent the prosecutor from linking the case to the crime of corruption. Of course, if Prosecutor Gao really raises the charge of corruption, he will have a plan to deal with it.

“To sum up, the main object of misappropriation of public funds protected by the Criminal Law is the owner’s right to use and control public funds and the security of public funds.

In this case, the defendant Liu Mengge took advantage of his position to pay off the debts of the county hospital and decided to change the method of payment of public funds without authorization out of the motive of facilitating the capital turnover of the company under the name of her husband Tong Zhizheng. His behavior had no control over the county hospital. It has a substantial impact on the right to use public funds, nor does it cause the risk of loss of public funds, nor infringes upon the objects protected by the crime of misappropriation of public funds.

We believe that the defendant Liu Mengge violated relevant financial disciplines by issuing bills, endorsing and other bills without having a real transaction relationship and a creditor-debt relationship. However, this behavior does not meet the nature and constituent elements of the crime of misappropriation of public funds, so the defendant should not be guilty of the crime of misappropriation of public funds. "After Fang Yi finished speaking, he looked at Inspector Gao. (End of Chapter)