Whoever illegally takes forgetting things and buried objects of others for himself and refuses to hand them over in a large amount shall be punished in accordance with the provisions of the preceding paragraph.
This crime can only be dealt with if it is spoken.
The crime of embezzlement refers to the act of illegally possessing other people's property or other people's forgetting things or buried objects for the purpose of illegal possession, and refusing to return or hand them over in a large amount. In judicial practice, we should pay attention to the following problems: 1? The object of this crime is limited to other people's property, other people's forgetting things or buried objects. The property of others kept on behalf of others should be understood in a broad sense, including the property of others actually held because of entrusted custody, entrusted purchase, consignment, transfer and collection without management, unjust enrichment, borrowing and leasing; Forgetting things refers to the property that the owner or holder of the property forgets to take away due to negligence, which makes a place temporarily out of control; Buried objects refer to the property buried underground by others. 2? The actor's occupation of the above three things is the key to this crime. The essence of the crime of embezzlement is to change legal possession into illegal possession. The establishment of the crime of embezzlement must meet two conditions at the same time: (1) legally holding other people's property is the premise of the establishment of the crime of embezzlement, and it is also the key to distinguish this crime from theft and fraud. The specific manifestations of legal possession are: holding other people's property based on entrusted custody, picking up other people's forgetting things, or inadvertently digging out other people's buried objects. The act of holding other people's property itself is illegal and cannot constitute this crime; (2) Refusing to return or hand over other people's property is the core of the crime of embezzlement. Refusing to return or hand over property refers to pretending to be the owner of the property, taking other people's property, other people's forgetting things, buried objects, etc. as your own, and disposing of them without authorization, including using them for your own use, selling them, renting them out or giving them to others. If the actor returns or surrenders other people's property, it does not constitute this crime. 3? Subjectively, the actor must be intentional, that is, the actor knows that it is someone else's property and illegally occupies it. It should be noted in particular that the purpose of illegal possession of other people's property in this crime is only after keeping other people's property or holding other people's forgetting things or buried objects. Otherwise, possession itself is illegal, and what crime should be punished according to does not constitute this crime.
4? Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 2 years but not more than 5 years and fined.
This crime belongs to the crime of telling and handling.
Zhang Xiaoyu v. Jiang Jianda (case of embezzlement and compensation for economic losses).
Shaoxing Intermediate People's Court of Zhejiang Province
Criminal incidental civil ruling
(2000) Shao Zhong Criminal Final ZiNo. 185
Appellant (defendant in the original trial) Jiang Jianda, male,1born in August 1949, Han nationality, from Zhuji City, Zhejiang Province, farmer, living in Panshan Village, Lipu Town, Zhuji City. On March 2000 1, he was detained in criminal detention and arrested on March 3 1 of the same month. Now detained in Zhuji Detention Center.
Defender Li Naiqiao, lawyer of Zhejiang Zhongzheng Law Firm.
Defender Xu Jianxing, legal worker of Zhuji Economic and Legal Service Office.
Zhang Xiaoyu, the private prosecutor in the original trial and plaintiff in the incidental civil action, is female,1born on September 9, 957, Han nationality, a native of Zhuji City, Zhejiang Province, a worker, and lives in the dormitory of Chengguan Town Federation of Trade Unions in Zhuji City.
Zhuji People's Court of Zhejiang Province tried the case of Zhang Xiaoyu, the private prosecutor and plaintiff in incidental civil action, v. Jiang Jianda, the defendant, who committed the crime of embezzlement by taking advantage of his post and compensated for economic losses, and made a criminal incidental civil judgment (2000) No.238 on June 28, 2000. Jiang Jianda, the defendant of the former city, refused to accept the appeal. Our court formed a collegial panel according to law and heard the case in public. Appellant Jiang Jianda, his defenders Li Naiqiao and Xu Jianxing, the private prosecutor in the original trial and plaintiff Zhang Xiaoyu in the incidental civil action attended the proceedings. The trial is now over.
The original judgment found that on June 1997 1 1, the private prosecutor Zhang Xiaoyu entrusted his brother Zhang Liqun to send more than 6,000 meters of cotton and linen shirt fabric to the defendant Jiang Jianda to process 4,000 short-sleeved shirts, and Jiang Jianda finished processing. Since then, except for165438+500 pieces sent to Ruan in August 1998 and 12 1 pieces taken sporadically, the remaining 3379 pieces have been kept in Jiang Jianda's place. 1On April 7th, 999, Jiang Jianda sold 3,379 shirts to Wu Runming without telling Zhang Xiaoyu and Zhang Liqun. In May of the same year, Zhang Xiaoyu and Jiang Jianda signed a supplementary processing agreement, stipulating that the processing fee was 6.5438+0.9 million yuan. After Zhang Xiaoyu failed to pick up the goods, she filed a civil lawsuit with the court. In the trial of the Economic Court, Jiang Jianda only admitted to receiving 500 pieces of shirt fabrics, denied receiving the remaining 3,500 pieces of shirt fabrics, and argued that the shirts he sold to others had nothing to do with Zhang Xiaoyu and Zhang Liqun. Zhang Xiaoyu immediately reported the case to the public security organ. When investigating in Zhuji police station, Jiang Jianda denied it again. On February 28th, 2000, when the Economic Investigation Brigade of Zhuji Public Security Bureau investigated, Jiang Jianda confessed all the facts. Appraised by Zhuji Price Bureau, each short sleeve is worth 24 yuan. Defendant Jiang Jianda and private prosecutor Zhang Xiaoyu had 3,379 short-sleeved shirts worth 8 1096 yuan. Excluding the processing fee 19000 yuan payable by Zhang Xiaoyu, the actual value of the property is 62096 yuan. The evidence confirming the above facts includes: the statement of Zhang Xiaoyu, the testimony of witnesses Zhang Liqun, Meng Quanmiao and JASON ZHANG, the processing agreement, the railway freight bill, the agreement signed by Jiang Jianda and Wu Runming, the trial record of the Economic Court of Zhuji Court, the inquiry record of the police station of Zhuji Public Security Bureau, the appraisal conclusion of Zhuji Price Bureau and Jiang Jianda's confession.
The original trial held that Jiang Jianda's behavior constituted a crime of embezzlement. According to the first paragraph of Article 270, the first paragraph of Article 64 and the first paragraph of Article 36 of the Criminal Law of People's Republic of China (PRC), the defendant Jiang Jianda was sentenced to fixed-term imprisonment 1 year for embezzlement, and the defendant Jiang Jianda was ordered to return 3,379 cotton and linen short-sleeved shirts from the private prosecutor Zhang Xiaoyu. The original items could not be returned for 10 days after the judgment came into effect.
The appellant Jiang Jianda and his defenders both claimed that the facts of the original judgment were unclear, the applicable law was improper, and the procedure was illegal, and they requested the second trial to declare Jiang Jianda innocent.
Zhang Xiaoyu, the private prosecutor in the original trial and the plaintiff in the incidental civil action, believes that the facts in the original trial are clear, the evidence is true and sufficient, the sentencing is appropriate, and the restitution is reasonable. He asked the second instance to dismiss the appeal and uphold the original judgment.
It was found through trial that the basic facts such as the time, process and consequences of the defendant Jiang Jianda's occupation of Zhang Xiaoyu's shirt were clear, and the evidence was as follows: Zhang Xiaoyu's statement from the private prosecutor proved that he entrusted Zhang Liqun to handle the shirt processing affairs, and the organizer Jiang Jianda illegally possessed 3,379 shirts and refused to return them; Witness Zhang Liqun's testimony proves that Zhang Xiaoyu entrusted him with the specific operation of shirt processing. In June 1997 1 1, he sent more than 6,000 meters of cloth to Jiang Jianda's home to be processed into shirts for him. Except for 500 shirts reported to Ruan in June 1998, the rest were left to Jiang Jianda. The documentary processing agreement states that the processing fee is 6,543,800 yuan+0.9 million yuan. Railway waybill, which proves that Jiang Jianda consigned a batch of clothes to Wu Runming on April 7th, 1999. The agreement signed between Jiang Jianda and Wu Runming proves that Jiang Jianda resold 3,379 short-sleeved shirts to Wu Runming on April 7, 1999/kloc-0. The trial transcript of the Economic Court of Zhuji Court proves that in the trial of the Economic Court of Zhuji Court, Jiang Jianda only admitted to accepting 500 pieces of shirt fabrics sent by Zhang Liqun, while the remaining 3,500 pieces were denied. Jiang Jianda also said that the shirts sold to Wu Runming had nothing to do with these shirts. The testimony of witnesses Meng Quanmiao and JASON ZHANG and the interrogation record of Zhuji Public Security Bureau prove that when Zhuji Public Security Bureau investigated Jiang Jianda, Jiang Jianda only admitted accepting the fabric of 500 shirts, but denied accepting the fabric of the remaining 3,500 shirts. Jiang Jianda also said that the more than 3,000 shirts he sold to Wu Runming had nothing to do with Zhang Liqun. Zhuji City Price Bureau proved this conclusion: each shirt is worth 24 yuan. During the investigation by the Economic Investigation Brigade of Zhuji Public Security Bureau, the appellant Jiang Jianda admitted that he had processed 4,000 shirts for Zhang Liqun and sold 3,379 of them to Wu Runming without telling Zhang Liqun and others.
The above evidence was provided by the private prosecutor in the original trial. After cross-examination in court, it has the effect of proof and is confirmed by our court. Appellant Jiang Jianda and his defenders suggested that Jiang's resale of 3,379 shirts was a legitimate lien. After investigation, Zhang Xiaoyu, the private prosecutor in the original trial, entrusted his brother Zhang Liqun to handle the shirt ordering on his behalf, and then established a processing contract relationship with Jiang Jianda, the appellant. Zhang Xiaoyu's statement and Zhang Liqun's testimony proved this point, and Jiang Jianda also confessed to the fact of processing and contracting these shirts. Because the ordering party and the undertaker did not sign a written processing contract in advance, nor agreed on the payment time of the processing fee, and there was no evidence to prove that the ordering party refused to pay the processing fee after being urged by the undertaker, the appellant thought that its resale behavior was to exercise the lien, which lacked legal basis. It was found through trial that the witness Zhang Liqun's testimony proved that the shirt was placed in Jiang Jianda's place and Jiang Jianda was not required to resell it. Jiang Jianda, the appellant, also admitted that the processed shirts were put in his place. According to the law of processing contract, if the ordering party provides raw materials, the ownership of the crops belongs to the ordering party, and the contractor has the obligation to keep the crops, so the crops should belong to escrow. Jiang Jianda, the appellant, had sold the shirts to others without telling Zhang Xiaoyu before signing the processing agreement with Zhang Xiaoyu. Later, he evaded Zhang Liqun's delivery many times. In the trial of the Economic Court and the investigation of the city police station, Jiang also tried his best to cover up the fact that he had processed 4000 shirts for Zhang. It can be seen that Jiang Jianda has the intention of illegal possession subjectively and refuses to return it objectively, which conforms to the legal characteristics of the crime of embezzlement. Defending the appellant Jiang Jianda and his defenders, he argued that Jiang's confession in this case was made by the public security organs, and the public security organs had no right to accept it, so his confession could not be used as evidence. The court held that the evidence obtained by the public security organs in the investigation of civil disputes was true and legal and could be used as evidence after cross-examination in court. The appellant Jiang Jianda and his defenders believe that the valuation of shirts should be based on the valuation of Shaoxing Price Bureau. After investigation, the appraisal conclusion of Shaoxing Price Office was entrusted by the defense and was appraised according to the samples provided by the defense. The base date of the appraisal was selected in March 2000, nearly one year after the incident, and the appraisal was conducted at the cost price. However, the appraisal of Zhuji Price Office confirmed in the original trial was entrusted by Zhuji Public Security Bureau, and the time of the incident was selected as the benchmark date for appraisal, and the appraisal was conducted at the market price. Compared with the two, the evaluation method of Zhuji Price Office is more scientific and the evaluation conclusion is more objective and credible, so the evaluation conclusion of Shaoxing Price Office provided by the defendant is not adopted.
We believe that Jiang Jianda, the appellant (defendant in the original trial), secretly sold what he kept for the purpose of illegal possession and refused to return it afterwards, which constituted the crime of embezzlement. The original judgment, conviction and applicable law were correct. Jiang Jianda, the appellant, made a false statement during the judicial investigation, and the circumstances were bad, but he was given a lighter punishment according to the actual situation of the case. Therefore, the original trial sentenced him to one year's imprisonment and ordered him to make a reasonable restitution. The trial procedure is legal. The appellant Jiang Jianda and his defenders put forward Jiang Jianda's innocent appeal and defense opinions, which were inconsistent with the facts and laws and were not adopted by our court. In accordance with the provisions of Item (1) of Article 189 of the Criminal Procedure Law of People's Republic of China (PRC), the ruling is as follows:
Reject the appeal and uphold the original judgment.
This is the final verdict.
Presiding Judge Chung Ching-chao
Acting Judge Zhang Kai
Acting Judge Ying Huazi
August 2000 15
Acting Secretary He Yuqing