● Answers to consultation questions:
Conspiracy to occupy a place involves the problem of * * * same crime. * * * The same crime refers to two or more persons committing a crime together. According to the different status and role of the perpetrator in the same crime, it can be divided into principal and accessory. It is the principal offender who plays a major role in joint crime.
Those who play a secondary or auxiliary role in the same crime are accomplices. But it doesn't mean that the actor in the crime of * * * must be divided into primary and secondary. If the perpetrators play a major role in the crime of * * *, they are all principal offenders. After the job occupation is completed, the failure to divide the money and stolen goods does not affect whether a crime is established or not, nor does it affect its status in the same crime, but it affects its position and role in the process of implementing job occupation. Therefore, conspiracy to occupy a position constitutes a crime, and even if the illegal gains are not shared afterwards, it will still be judged as the crime of occupying a position. As for the final sentencing, it should be judged according to the whole case, such as whether it is a principal or an accessory, whether it is voluntary surrender or meritorious service, and so on.
● The charges and legal punishment of the crime of duty embezzlement:
Personnel of companies, enterprises or other units who, by taking advantage of their positions, illegally take the property of their own units for themselves, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.
● Large amount standard:
The Supreme People's Procuratorate Ministry of Public Security's "Provisions on the Standards for Public Security Organs to Jurisdicte Criminal Cases for Filing and Prosecuting (II)" stipulates that the personnel of companies, enterprises or other units, taking advantage of their positions, illegally take the property of their own units for themselves, and the amount is more than 5,000 yuan to less than 10,000 yuan, which is a relatively large amount and should be filed for prosecution.
● Case:
Xu is the manager of Banba Bailong large coal yard in Longlin Autonomous County under Baise Wanlong Energy Co., Ltd., and Liang is one of the partners of Banba Yongfa coal yard. On March 12, 2009, after conspiring with Liang, at about 20 o'clock that day, when they were on duty at Bailongda Coal Yard in Banba, they rented three passing trucks and smuggled 230.58 tons of blended coal (worth RMB 64,562) from Bailongda Coal Yard to Yongfa Coal Yard operated by Liang for profit. After the incident, the public security organs arrested Xu, seized the stolen coal according to law and returned it to the owner. On April 1 day, 2009, Liang surrendered himself to the public security organ. Longlin Autonomous County Court held a public hearing on May 25th to hear the case. The court held that Xu took advantage of his position and cooperated with Liang for the purpose of illegal possession, with a large amount. Their actions all constitute the crime of duty embezzlement, and they play a major role in the crime of * * * *, and they are all punished as the principal offenders. Liang surrendered himself automatically after committing a crime and truthfully confessed his crime. He surrendered himself and can be given a lighter punishment. Xu has a good attitude of pleading guilty and can be given a lighter punishment according to law. Depending on the nature, circumstances, harmful consequences of the case and the repentance attitude of the two defendants, probation for the two defendants is no longer harmful to society, and probation can be declared. The court sentenced the defendant Xu to three years' imprisonment, suspended for four years, and sentenced Liang to two years and six months' imprisonment, suspended for three years.
Lawyer Yan Jianye (Dalian)