Shanxi Dongao Law Firm accepted the entrustment of relatives of Zhang XX, the appellant in this case, and appointed me as its second trial defender. After consulting the relevant files and meeting with the defendant, I think that the facts of the first-instance judgment are unclear and the nature is wrong, and the appellant Zhang XX's behavior cannot constitute the crime of misappropriating funds. The reason for this is the following：
First, the appellant does not belong to the subject of the crime of misappropriating funds and does not constitute the crime according to law.
The crime of misappropriating funds requires that the subject of the crime is the staff of companies, enterprises or other units, while the appellant Zhang XX is not a staff member of Shanxi XX Co., Ltd., and does not belong to the subject of the crime of misappropriating funds, which cannot constitute this crime according to law. It is obviously wrong that the first-instance judgment found Zhang XX guilty enough on the premise that he is not a company or enterprise employee.
Second, the first-instance judgment found that the defendant Zhang XXX used the company's funds on the grounds that his behavior constituted the crime of misappropriating funds, and the law was wrong.
The court of first instance clearly wrote in the trial on page 2 of the judgment, "... the defendant Wang XX met the defendant Zhang XX through Wang XX's introduction, and the defendant Zhang XX proposed to borrow money from the defendant Wang XX under the condition of tight funds, and the defendant Wang XX handled and managed his unit funds on the grounds that he was a cashier of Shanxi XX Co., Ltd.. From April, 2000/kloc-0 to March, 2006, the company misappropriated RMB 65,438+03,664,427.9 for many times, making the defendant Zhang Xxx engage in profit-making activities ... "The court also wrote," The defendant Zhang Xxx used the company's funds knowing that his behavior constituted the crime of misappropriation of funds ". Therefore, the court of first instance found the defendant Zhang XX guilty of misappropriating funds on the grounds that he knew it was company funds.
Third, the first-instance judgment found that Zhang XX was guilty of misappropriating funds.
1, Article 272 of the Criminal Law only stipulates that misappropriating unit funds constitutes a crime, but does not stipulate that fund users constitute a crime.
2. According to Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Misappropriation of Public Funds, "If the user uses public funds for others, and the user colludes with the embezzler, instigates or participates in planning to obtain misappropriated funds, he shall be convicted and punished for the crime of misappropriation of public funds", and the law only stipulates four ways of behavior of public funds users, which is not the case. Even if the employer knows the source of public funds, but does not collude, instigate, participate in or plan misappropriation, it cannot be identified as a * * * offender just because of misappropriation of public funds; What's more, the law only stipulates the crime of misappropriation of public funds, but there is no relevant provision and explanation of the crime of misappropriation of funds. To say the least, even if the appellant Zhang XX colluded, instigated, participated in and planned with the defendant Wang XX in the original trial, Zhang XX could not constitute the crime of misappropriating funds. Because the provisions of the crime of misappropriation of public funds cannot be applied to the crime of misappropriation of funds by analogy. Therefore, the court of first instance wrongly applied the law,
4. The appellant Zhang Xxx is not the user of this case, but the actual user of this case is the company where Zhang Xxx works. According to the relevant provisions of the criminal law, the unit is not criminally responsible for the crime of misappropriating funds. Zhang Xxx was identified as the user in the first instance, and the facts identified were wrong.
1. From the upward flow of funds, it can be seen that all the funds of XX Pharmaceutical entered Yan Weidong's company through the bank, not Zhang XX. The interest is also paid by Zhang Xx's company, not by him personally.
2. Appellant Zhang XX is the legal representative or person-in-charge of Taiyuan W Medicine Store, Taiyuan U Food Co., Ltd., Taiyuan K Food Co., Ltd. and Taiyuan P Health Care Products Co., Ltd.. Due to the company's tight funds, long bank loan approval time and complicated procedures, he borrowed money from the defendant Wang XX in the original trial, and all the borrowed money was used for the company's operation (Jinyuan District, Taiyuan City).
3. Article 272 of the Criminal Law stipulates that: a staff member of a company, enterprise or other unit misappropriates the funds of his own unit for personal use or lends them to others by taking advantage of his position, which constitutes the crime of misappropriation of funds. It can be seen from the provisions of this law that the user must be an individual to constitute this crime, but the unit use does not constitute this crime.
Therefore, the appellant Zhang XX's loan is a duty behavior, and its behavior should be borne by the company; That is, the appellant Zhang XX is not the user of this case, but the actual user of this case is the company where Zhang XX works. According to the relevant provisions of the criminal law, the unit is not criminally responsible for the crime of misappropriating funds. It is wrong to identify Zhang XX as a user in the first instance, and it is even more wrong to identify Zhang XX as a crime.
5. The evidence adduced by the public prosecution agency can't fully and effectively prove that the appellant Zhang XX reproduced the false bank statement, and its accusation can't be established according to law.
According to Wang X, the defendant in the original trial, he changed all the false bank statements, and then handed them to Zhang X, the appellant, to take them back and reprint a statement (line 8, page 3 of the first interrogation record of XX District Procuratorate of Taiyuan City); And confessed that he was changed by Zhang XX because he couldn't type and tabulate by computer, and Zhang XX bought a printer for this purpose (line 9 on page 4 of the transcript of the first interrogation); Appellant Zhang XX confessed that he was unaware of the false bank statement held by defendant Wang XX in the original trial and did not participate in the revision; The confessions of the two were obviously inconsistent, but after careful analysis, the confession of the defendant Wang X in the original trial was obviously untenable and the court should not accept it.
1. As a person who has been engaged in accounting for many years, Wang X, the defendant in the original trial, said that computer tabulation and typing are his basic skills, but he can't. Who made the monthly financial statements of this unit in recent years? Obviously, its excuse violates the rules of daily experience.
2. Defendant Wang XX confessed that Appellant Zhang XX bought a printer for this purpose. Where is the printer? The investigation agency has searched the home and company of the appellant Zhang XX, but no printer was found (the public prosecution agency submitted the seizure list as evidence at the first trial). Where is the printer? So far, there is no relevant evidence to prove that the appellant Zhang XX reprinted a false bank statement.
3. Defendant Wang× in the original trial took advantage of the convenience of managing and handling the funds of his own unit, and obtained the bank statement at first hand, knowing the book amount of his own unit most clearly, while Appellant Zhang×× was not an accounting professional, and was not clear about the accounts of Shanxi××× Pharmaceutical Co., Ltd., only Defendant Wang× in the original trial was most likely to use his position to misappropriate the funds of his own unit by covert means of reprinting false bank statements.
4. It is also the most critical point of this case. The public prosecution agency determined that it was too arbitrary for the appellant Zhang XX to reprint the bank statement just because the account book handed over by the appellant Zhang XX to the case-handling personnel indicated that "the statement has been recorded" and "the statement has not been recorded". The appellant Zhang XX confessed that this comment was made by Wang XX when he took a notebook to check the amount of loan interest. Although Zhuang confessed that he had never seen this account book, he confessed in the sixth line of page 5 of the first interrogation record, "Q: How did 9.4 million yuan come from? Answer: I got 9.4 million from the information I saved before and the information saved by Zhang XX. However, the loan between Zhang XX, the appellant of the original trial, and Wang XX, the defendant, took a long time, had many times and had a large amount, so it was impossible for Wang XX himself not to have written records. But the loan amount and interest recorded by Wang X, the amount forged by Wang X's false bank statement and the loan and interest recorded by Appellant Zhang X should be the same, so which reconciliation do the two annotations "credited to the statement" and "not credited to the statement" refer to? How does this mark prove that the false bank statement was reprinted by the appellant Zhang XX? In this regard, the public prosecution agency has no other evidence to support. Therefore, this evidence can not fully and effectively prove that the appellant Zhang XX forged the bank statement. However, based on the confession of the defendant Wang XX in the original trial, it was found that the appellant Zhang XX made a false bank statement, which obviously violated the provision of Article 46 of the Criminal Procedure Law that only the defendant confessed without other evidence and could not be convicted and punished. Therefore, the appellant Zhang XX objectively did not commit the crime of misappropriating public funds, and the charges charged by the public prosecution agency could not be established.
There is only a civil loan relationship between the appellant Zhang××× and the defendant Wang××× in the original trial. After discussion by all shareholders of the company, it is decided to pay interest of RMB 6,543,800+0,730 yuan to Shanxi XXX Pharmaceutical Co., Ltd. as agreed in the contract.
Appellant Zhang XX borrowed money from defendant Wang XX because of the company's shortage of funds, which affected its operation, and the bank loan review procedure was cumbersome and took a long time. It is precisely because this paragraph solved the urgent need of the appellant's company that, with the consent of all shareholders, the appellant Zhang XX used the funds of Shanxi XX Pharmaceutical Co., Ltd. and paid interest of 6,543.8+0.73 million yuan, which was delivered to the defendant Wang XX in the original trial (supported by the witness testimony submitted by the appellant). Although Wang X does not admit to charging interest of 6,543,800 yuan+0.73 million yuan, he only admits to charging a thank-you fee of 45,000 yuan, but it is obviously unreasonable to charge only 45,000 yuan for tens of millions of loans, and the court should not accept it.
To sum up, the law does not stipulate that the crime of misappropriation of funds is committed by * * *, and the evidence of the public prosecution agency accusing the appellant Zhang * * * of misappropriation of funds is obviously insufficient, lacking a sufficient and effective evidence chain; However, the appellant Zhang XX's company actually used the funds misappropriated by the defendant Wang XX in the original trial. According to the principle of a legally prescribed punishment for a specified crime and the explanation that the defendant is prohibited from shirking, the appellant and the company do not constitute the crime of misappropriating funds. The facts of the first-instance judgment are unclear and the applicable law is wrong. Please ask the court of second instance to revoke the original judgment on the basis of finding out the facts and declare the appellant Zhang XX innocent according to law.