According to the criminal law, misappropriation of public funds for personal use is the objective premise of this crime. The word "personal use" seems simple, but if we dig deeper, we find that this is a promising point for criminal defense lawyers.
A very important skill of criminal lawyers is questioning skills. So what questions can we ask about "personal use"?
I. Laws and regulations related to "personal use"
The Supplementary Provisions on Implementing and Punishing Corruption and Bribery Crimes (1989 issued, which has expired) stipulates that:
The "misappropriation of public funds for personal use" as stipulated in Article 3 of the Supplementary Provisions includes the use of the embezzler himself or for others. After misappropriating public funds, if the misappropriated public funds are used by enterprises, institutions, organs and groups for personal gain, they shall be used by individuals. The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds (promulgated on 1998) stipulates that:
Article 1 The misappropriation of public funds as stipulated in Article 384 of the Criminal Law is for personal use, including the use of the embezzler himself or others.
Misappropriation of public funds to private companies and enterprises belongs to misappropriation of public funds for personal use. Official Reply of the Supreme People's Procuratorate on the Application of Law to the Use of Public Funds by Private Companies and Private Enterprises (issued in 2000, invalid).
Henan Provincial People's Procuratorate:
Your bureau's "Request for Instructions on whether the misappropriation of public funds by private companies and private enterprises constitutes a crime and the applicable legal issues" (Yu Jian Yan [1999]No. 12) has been received. Through research, it is considered that the act of misappropriating public funds to private companies and enterprises can constitute the crime of misappropriation of public funds, whether before or after the revision of the criminal law. As for the legal application of specific acts, it should be based on the time when the acts occurred, in accordance with the relevant provisions of the Criminal Law, the Supreme People's Court, the Supreme People's Procuratorate10.6 "Answers on Several Issues Concerning Punishing Corruption and Bribery Crimes" and the Supreme People's Court's May 9 "Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Embezzlement of Public Funds", 1998. The Supreme People's Court's Interpretation on How to Identify Misappropriation of Public Funds for Personal Use (released on 200 1, invalid) stipulates that,
In order to punish the criminal activities of misappropriating public funds according to law, according to the relevant provisions of the Criminal Law, the relevant issues on how to identify the misappropriation of public funds for personal use are explained as follows:
Article 1 State functionaries who take advantage of their positions to lend public funds to other natural persons or private enterprises or private partnerships without legal personality in their own names are guilty of misappropriation of public funds.
Article 2 State functionaries who take advantage of their positions to lend public funds to other units for personal gain are guilty of embezzlement. Paragraph 1 of Article 384 of the National People's Congress Standing Committee (NPCSC)'s Interpretation (implemented in 2002) stipulates that,
In any of the following circumstances, it belongs to misappropriation of public funds for personal use:
(a) the use of public funds for himself, his relatives or other natural persons;
(2) using public funds for other units in the name of individuals;
(3) Individuals decide to use public funds for other units in the name of the unit to seek personal interests. Summary of the Symposium on the Trial of Economic Crimes by National Courts in the Supreme People's Court (released in 2003).
Four, about the crime of misappropriation of public funds
(a) the unit decided to use public funds to entertain individuals.
If the collective leadership of a unit decides to use public funds for personal use, or the person in charge of the unit decides to use public funds for personal use for the benefit of the unit, it shall not be convicted and punished for the crime of misappropriating public funds. If the above acts cause heavy losses to the unit and constitute other crimes, the responsible person shall be convicted and punished in accordance with the relevant provisions of the Criminal Law.
(two) the identification of misappropriation of public funds for other units.
In judicial practice, whether the use of public funds by other units is recognized as "in the name of individuals" can not only look at the form, but also grasp the essence. If the actor evades financial supervision, or agrees that the user will do it in the name of an individual, or the loan and repayment are all done in the name of an individual, and the public funds are used by other units, it shall be deemed as "in the name of an individual". "Personal decision" includes both the decision of the actor within the scope of authority and the decision beyond the scope of authority. "Seeking personal interests" includes both cases where the actor and the user agreed in advance to seek personal interests but did not actually obtain them, and cases where personal interests were actually obtained without prior agreement. Among them, "personal interests" include both illegitimate interests and legitimate interests; It includes both property interests and non-property interests, but such non-property interests should be concrete practical interests, such as further education and employment.
(5) Identification of the nature of the act of misappropriating public funds to return personal debts.
Those who misappropriate public funds to repay personal debts shall be identified according to the causes of the debts. The repayment of debts incurred by individuals engaged in illegal or profit-making activities shall be deemed as misappropriation of public funds to engage in illegal or profit-making activities. Second, the main scope of "personal use"
"Personal use" has a subject scope, and it is not to remove public funds for personal use. According to the above legal provisions, "self-use" includes the following subjects.
(1) natural person
According to the above-mentioned relevant laws and regulations, after the public funds of natural persons, including themselves and others, are used for other purposes, they belong to "personal use" in principle in any case. However, there is one exception. In 2003, the Supreme People's Court's "Summary of the Symposium on the Trial of Economic Crimes by National Courts" stipulated that if the collective leadership of a unit decides to use public funds for personal use, or the person in charge of the unit decides to use public funds for the benefit of the unit, it will not be convicted and punished for the crime of misappropriating public funds.
(2) unit
First, the distinction between public and private.
Whether misappropriating public funds for company use belongs to "personal use" is initially divided into public and private.
In the earliest legal provisions, misappropriating funds from state-owned units and collective-owned units does not belong to misappropriating funds for personal use. According to the earliest judicial practice, the object of the crime of misappropriating public funds is the right to use public funds, which is essentially "private use of public funds", but from a macro perspective, transferring public funds to state-owned or collective-owned units has not changed the public nature of public funds, and the right to use public funds and the right to income still belong to the state, and the meat is rotten in the pot. The only thing that needs to be punished is the violation of the public fund management system in the process of misappropriation, so it can be dealt with according to discipline.
1989 (void) promulgated "Answers to Several Questions about Implementing Supplementary Provisions on Punishing Corruption and Bribery Crimes" inherited this idea, stipulating that "after misappropriating public funds, if the misappropriated public funds are used by enterprises, institutions, organs and groups for personal gain, they should be misappropriated for personal use." It is not mentioned that misappropriation to state-owned enterprises also belongs to "personal use". 1998 promulgated the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds, which also inherited this concept, stipulating that "those who misappropriate public funds to private companies and enterprises belong to misappropriation of public funds for personal use."
Some friends may question: only misappropriating to private enterprises belongs to "personal use", but not to institutions. This will take into account one of the most basic principles of criminal law, namely the principle of legality. The law does not expressly stipulate that it does not constitute a crime. As long as there is no expression of a crime in criminal laws and regulations, it is equivalent to declaring that this behavior is not a crime.
Since then, this rule has changed.
The Supreme People's Court 200 1 issued the Interpretation on How to Identify Misappropriation of Public Funds for Personal Use (Invalid), which only stipulates that "lending public funds to other units for personal benefit belongs to misappropriation of public funds for personal use." In the legislative interpretation of the National People's Congress Standing Committee (NPCSC) in 2003, it was stipulated that "public funds were used by other units in the name of individuals, and individuals decided to use public funds for other units in the name of units to seek personal interests". According to the principle that the new law is superior to the old law, later laws and regulations do not distinguish between units that use funds, and misappropriating funds to public units belongs to misappropriation of public funds for personal use.
Second, whether private enterprises have legal personality.
200 1 judicial interpretation not only distinguishes between public and private enterprises, but also divides private enterprises according to whether they have legal person qualifications. "Lending public funds to other natural persons or privately-owned enterprises or private partnerships without legal personality in the name of individuals is misappropriation of public funds for personal use." Lending funds to private enterprises without legal personality is regarded as lending to individuals and lending to units with legal personality, which is not clearly listed in the explanation. But this explanation has failed.
In 2002, the National People's Congress Standing Committee (NPCSC)'s legislative interpretation unified all units, stipulating that "those who use public funds for other units in their own name and those who decide to use public funds for other units to seek personal interests in their own name" are regarded as "personal use", thus ending the dispute over the subject of the crime of misappropriating public funds.
Third, lend it to other units in the name of an individual.
Lending unit public funds to other units in the name of individuals is essentially to manage the unit public funds first and then dispose of them by themselves, so this situation belongs to misappropriation of public funds for personal use, which is well understood. But things under personal names have different interpretations.
In 2003, the Supreme People's Court's "Minutes of the Symposium on the Trial of Economic Crime Cases by National Courts" stipulated that there are three main situations in which public funds of units are lent in the name of individuals. "In judicial practice, whether public funds are used by other units is determined as' in the name of individuals', which can be seen not only in form but also in substance. If the actor evades financial supervision, or agrees that the user will do it in the name of an individual, or the loan and repayment are all done in the name of an individual, and the public funds are used by other units, it shall be deemed as "in the name of an individual". "Simply put, it is illegal to allocate funds, agree on personal names, and actually name individuals.
Four, the individual decided to lend in the name of the unit to seek personal interests.
There are two conditions for this situation to constitute a crime. One is a personal decision, not a collective discussion decision, and the other is to seek personal interests.
Personal decisions here include both decisions within the scope of the actor's authority and decisions beyond its authority. In the previous judicial practice, people thought that only decisions beyond the scope of authority were included, but there were two problems. One problem is that the authority of some units is not clear, and the scope of authority is very large, so it is not easy to operate. Another problem is that joining someone has the transfer authority of 6.5438+0 million yuan, but he transferred 2 million yuan. So is this situation full calculation or just over calculation? Because this kind of decision is a personal decision to seek personal interests, whether it is within the scope of its authority or not, this kind of behavior is essentially a means for individuals to use public funds to seek interests, and there is no essential difference whether they exceed their authority or not.
There are two forms of seeking personal interests. First, the two sides must have agreed on the benefits, regardless of whether he actually obtained the benefits; Second, there was no agreement between the two sides, but in fact he gained personal benefits.
Personal interests here include both legitimate interests and abnormal interests, including both material interests and intangible interests. Material benefits such as money, solving intangible benefits such as employment indicators, and so on.
But in either case, the benefits sought should be concrete and practical. For example, a problem often encountered in practice, someone lent money to a classmate's unit for use, but did not get any practical benefits. Some people think that this behavior has improved their interpersonal relationship and increased their feelings, which is also a benefit, because it may be beneficial in the future. However, as long as there is no actual interest in this situation, there should still be evidence to prove that they have an agreement on the issue of interests, and the improvement of feelings cannot be evaluated as interests. Otherwise, the scope of conviction is too wide, which is not in line with the original intention of legislation.
Verb (abbreviation of verb) refinement of defense points
According to the above analysis, the crime of misappropriating public funds "for personal use" can have several entry points of innocence defense:
1. If the embezzler transfers the public funds to natural persons, is it discussed collectively?
2. If it is used by a company, is it lent in the name of an individual?
3. If it is lent in the name of the company, whether it is up to the individual to decide;
4. If an individual decides to lend in the name of the company, whether he has sought personal interests;
5. If you think that you have sought personal interests, is it an agreed interest or a real interest?
6. If no actual benefits are obtained, whether there are agreed benefits, and whether the agreed benefits are clear, specific and verifiable.