Huang, a native of Chongqing, born in 1968, Han nationality, college degree, was originally a cadre of the third branch of Chongqing XX Company, living in Yubei District, Chongqing. On 200 1, he was prosecuted by the people's procuratorate of a district in Chongqing for alleged corruption.
The defendant in this case is suspected of colluding with others to embezzle the project funds of the company's construction project. The total amount is 8 1700 yuan, of which Huang gets 44,064.35 yuan. According to the provisions of Articles 382 and 383 of the Criminal Law, "if the amount of personal corruption is more than 50,000 yuan but less than 100,000 yuan, he shall be sentenced to fixed-term imprisonment of more than five years, and his property may also be confiscated; If the circumstances are particularly serious, he shall be sentenced to life imprisonment and confiscation of property. " (Note: "the amount of personal corruption" should be determined according to the amount of personal participation in * * * and corruption)
After fully reviewing the case file and asking the defendant many times, the defense lawyer put forward the defense opinions that the defendant's position was subordinate, the corruption and money sharing was arranged by the superior leader, and he was instructed and passive in the process of occupation. Therefore, he is an accessory, returns all the stolen money, has a good attitude of pleading guilty, has certain repentance and has no criminal record, and requests that the defendant be given a lighter punishment and be suspended.
After trial, the court adopted the defense opinions of defense lawyers and co-defendants. Finally, the defendant Huang was sentenced to two years and six months in prison and suspended for three years for committing corruption. In the case that the defendant should be sentenced to more than five years in prison for accepting a large amount of bribes, the excellent defense of the defense lawyer successfully reduced the sentence of the client and obtained the probation result, which saved the client from jail.
Criminal law of the people's Republic of China
(1 July 979 1 revised by1March 997 14 and implemented from1June 9971).
Article 383 Whoever embezzles shall be punished in accordance with the following provisions according to the seriousness of the case:
(1) Individuals who embezzle more than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and may also have their property confiscated; If the circumstances are especially serious, he shall be sentenced to death and his property shall be confiscated.
(2) Individuals who embezzle more than 50,000 yuan but less than 100,000 yuan shall be sentenced to fixed-term imprisonment of more than five years and may also have their property confiscated; If the circumstances are especially serious, he shall be sentenced to life imprisonment and confiscation of property.
(3) Individuals who embezzle more than 5,000 yuan but less than 50,000 yuan shall be sentenced to fixed-term imprisonment of not less than one year but not more than seven years; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than seven years but not more than ten years. If an individual embezzles more than 5,000 yuan but less than 10,000 yuan and repents after committing a crime and actively returns the stolen goods, the criminal punishment may be mitigated or exempted, and the unit to which he belongs or the competent authority at a higher level shall give him administrative sanctions.
(4) If the amount of personal corruption is less than 5,000 yuan, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; If the circumstances are relatively minor, administrative sanctions shall be given at the discretion of the unit to which they belong or the competent authority at a higher level.
If repeated corruption is not handled, it shall be punished according to the accumulated amount of corruption.
When the establishment of a crime is based on the specific identity of the actor, the crime is a real identity crime, which is called constitutive identity. The crime of corruption is a real identity crime with the specific identity of the actor as the constitutive element. The specific identity of the actor has been discussed in detail, that is, the national staff, the national staff and the personnel entrusted by state-owned units to manage and operate state-owned assets. * * * The perpetrators of corruption may all have specific identities, or those with specific identities collude with those without specific identities to commit corruption. When the actor with a specific identity, under the intentional control of the same crime of corruption, uses his position to facilitate, cooperate with, use and take care of each other to varying degrees, and constitutes the crime of corruption with * * *, then * * is considered as the crime of corruption. This corrupt subject is a special subject with a specific identity. They may all be staff members of state organs, people entrusted by state-owned units to manage and operate state-owned assets, or corrupt people who collude with the above three specific identities.
In fact, China's criminal law recognizes that a person without a specific identity can constitute an accomplice with a person with a specific identity. In other words, people who do not have the status of state functionaries can instigate people who have the status of state functionaries to commit corruption, which constitutes an instigator; You can also collude with people who have the status of national staff to help them commit corruption and constitute an accomplice; Can also be under the intentional control of * * *, and people with the status of national staff jointly commit corruption, constitute an * * * accomplice (* * * accomplice). * * An accomplice can be the principal, accessory or coerced accomplice among * * accomplices.