Brief introduction of the case In September 2002, the XX county government formed the minutes of the meeting (2002) No.63, and agreed that Y Guofa Real Estate Development Company would change the land use function of Guofa Garden Project in an industrial park. In March 2003, Guofa Real Estate Development Co., Ltd. entrusted XX County Land Assets Appraisal Consulting Co., Ltd. (hereinafter referred to as the land appraisal company) to evaluate the land price of the plot before and after the change. According to the land price evaluation form issued by the land evaluation company, the land prices before and after the change are 177 1 10,000 yuan and 20.622 million yuan respectively. The evaluation form indicates: "The above calculation results are for reference only and have no basis." Subsequently, according to the minutes of the meeting, Guofa Real Estate Development Company submitted the above-mentioned relevant materials to the County Bureau of Land and Resources, requesting the land use function change registration of the plot.
In April 2003, Lin, then deputy director of the Real Estate Trading Center of the County Land and Resources Bureau, was responsible for reviewing the land use function of Guofa Garden Project. According to the aforementioned Land Price Evaluation Form and the Notice of County Land and Resources Bureau on Adjusting Land Use Right Transfer Fee and Business Management Standard 1999, the County Land and Resources Bureau decided to supplement the land transfer fee of Guofa Fang Kai Company by multiplying the difference in the land price evaluation form by 20%. On the same day, Guofa Fang Kai Company immediately paid the land transfer fee. On June 13, the county land and resources bureau issued the state-owned land use certificate for this plot.
However, on June 5438+065438+ 10, 2003, the minutes of the special meeting of the county government [2003] No.55 held by the county government office held that "... Guofa Housing Development Co., Ltd. paid the leasing fee according to the standard of' 20% after deducting the original land use calculation price from the current land use evaluation price', which is obviously unreasonable and should be corrected." On February 25, 2004, the Minutes of County Government Special Meeting [2004] No.3 issued by the county government office further clarified: "February 25, 2004,
In this way, Guofa Housing Development Co., Ltd. caused a loss of 46.538 million yuan to the country because it did not pay the land transfer fee.
On April 7, 2005, XX County People's Procuratorate accused Lin of being seriously irresponsible for his work and not performing his duties correctly during the process of reviewing the land use change and land transfer procedures of Guofa Garden Project, which constituted a crime of dereliction of duty and should be investigated for criminal responsibility. Before the case was filed, the procuratorate had recovered the loss of 3 million yuan. By the time of prosecution, all the losses had been recovered.
In the same year, lawyer of Zhejiang Siyuan Kunlun Law Firm accepted Lin's entrustment as his defender. After careful study, the two lawyers sorted out mature defense ideas and decided to defend Lin's innocence.
Focus of controversy
The focus of the dispute in this case lies in whether Lin's crime of dereliction of duty is established.
In this case, the public prosecution agency believes that Lin Zhiming's provisions on the collection of land transfer fees in the State Council Guofa (200 1)No. 15 still determine the land transfer fees payable by Guofa Garden according to the provisions of the Notice on Adjusting the Collection and Management Standards of Land Use Right Transfer Fees of County Land and Resources Bureau 1999 and the "land price evaluation form that can't be used as a basis at all". The reason for this is the following：
1. From the main point of view, Lin has no obligation to collect land transfer fees and cannot be the subject of dereliction of duty.
The "Reply on the Establishment of X County Real Estate Trading Center" stipulates: "X County Real Estate Trading Center ... is mainly responsible for ... assisting relevant departments to collect land transfer fees and other taxes." It can be seen that there is no responsibility for the examination and approval of land use function change, land transfer fee collection and other related matters involved in this case.
In addition, the seal on the contract for transferring the right to use state-owned land involved is the Bureau of Land and Resources, not the real estate trading center; The contract also states that the land-using unit shall pay the land leasing fee to Party A, namely XX County Land and Resources Bureau, instead of the real estate trading center.
From the above two aspects, it can be seen that the real estate trading center where Lin is located has no responsibility to collect land transfer fees. It can be inferred that Lin has no such responsibility and cannot be the subject of dereliction of duty in this case.
2. The document Guo Fa [200 1] 15 mentioned by the procuratorate itself has many problems and cannot be used as a basis.
First of all, on April 17, 2004, the Land and Resources Bureau stamped it to prove that "the document was released to the public and circulated to the bureau leaders and departments". It does not include the real estate trading center, nor does it include the forest.
Secondly, Guofa [200 1] 15 document is not an administrative regulation or other mandatory provisions that must be observed, and violation of this document cannot be regarded as a crime of dereliction of duty.
Document Guo Fa [200 1] 15 is not an administrative regulation, but a policy document.
(1) According to Article 6 1 of the Legislative Law of People's Republic of China (PRC), administrative regulations must be promulgated by the State Council Order signed by Premier the State Council. And document 15 has no order signed by the prime minister.
(2) Article 62 of the Legislative Law stipulates that after being signed and published, it must be published in the the State Council Gazette and newspapers distributed nationwide in time. The file 15 does not have this form.
(3) The contents of this document are all required in principle. Finally, the document requires that "all relevant departments in the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government should conscientiously implement the spirit of this circular, formulate specific implementation measures, and gradually establish and improve various land management systems". From this perspective, if there are no corresponding administrative regulations, rules and regulations or specific implementation measures, there is no way to implement them. In this way, the content of the file is not directly executable and practical. In this case, it is completely reasonable for Lin to make a decision according to the provisions of the Bureau of Land and Resources 1999.
(4) Document Guo Fa [200 1] 15 is no longer applicable to the requirements of the current land policy, and has actually become invalid.
The opinions put forward by Wenzhou Municipal Bureau of Land and Resources on this case include "suggesting that XX county government abolish and correct the documents and minutes that violate the relevant land laws, regulations, rules and policies in time". At the same time, it is suggested to formulate specific implementation measures that are compatible with documentNo. [2005]28 of the State Council. This fully shows that the failure to abolish and correct the documents and minutes of the county government in time is one of the reasons for this case; The implementation of the national development document requires the people's government at the county level to formulate supporting implementation measures; DocumentNo. [200 1] 15 of the State Council has changed, otherwise, when the corresponding specific implementation measures are required, the handling opinions should be included.
3. Lin correctly performed his duties based on the evaluation report issued by XX County Land Assets Evaluation Consulting Co., Ltd..
The procuratorial organ seized the statement that "the above calculation results are for reference only, without any basis" on the evaluation form, and considered that Lin used this evaluation form as one of the bases for calculating the land transfer fee, which was irregular and dereliction of duty. But in fact, page 15 of the land evaluation report of Expo Evaluation Agency Co., Ltd. accused by the procuratorate also states: "The purpose of local evaluation is to provide consulting services for the entrusting party to grasp the value of the land assets of this plot. If it is used for other purposes, the evaluation results of this report are invalid. " These remarks are similar to the words that the procuratorate relies on "for reference only, without any basis". Even if the Expo company has something to say, the procuratorate will prosecute according to the land appraisal report issued by the Expo company, so how can the same situation become dereliction of duty when it comes to Lin? It is obviously impossible for the procuratorate to accuse Lin of dereliction of duty!
Trial judgment
The lawsuit in this case has a bright future. On August 16, 2005, the people's court of XX County, Zhejiang Province made a first-instance judgment and found Lin guilty of dereliction of duty. However, since all the losses were recovered after the incident, he could be given a lighter punishment as appropriate. In view of the minor circumstances of forest crime, it can be exempted from criminal punishment. Lin refused to accept the appeal. The second-instance judgment of Wenzhou Intermediate People's Court was sent back for retrial. On April 7, 2006, XX County People's Procuratorate made a decision to dismiss the case, arguing that although Lin was responsible for the loss, the county land and resources bureau did not clearly stipulate how to collect the land transfer fee when changing the land use, which was also one of the reasons for the loss. Therefore, Lin can not be considered as a crime of dereliction of duty. According to the provisions of Article 135 of the Criminal Procedure Law, it was decided to dismiss the case.
On September 2 1 2006, Lin filed an application for compensation with the XX County People's Court on the grounds that he had no criminal facts and demanded that the XX County People's Court and the XX County People's Procuratorate compensate the corresponding losses, eliminate the influence, restore his reputation and apologize. On June 24, 2006,165438+1October 24, the people's procuratorate of XX county and the people's court of XX county made the same compensation decision, and compensated Lin for a total of 2,272.3 yuan, and apologized to eliminate the influence.
Classical analysis
The so-called crime of dereliction of duty refers to the serious irresponsibility, failure to perform or improper performance of duties by the staff of state organs, resulting in heavy losses to public property, the interests of the state and the people.
As a crime of dereliction of duty, the boundary between the crime of dereliction of duty and non-crime lies in whether the power is abused. This involves how to understand "authority" and "abuse".
1. How to understand "authority"
Authority (post) refers to the general post authority enjoyed by the actor or the corresponding post undertaken. What is said here is the basic elements of authority.
The premise of judging whether it constitutes the crime of dereliction of duty is whether the defendant has "dereliction of duty". On the other hand, in this case, according to the relevant regulations of the local government, it is the responsibility of the Bureau of Land and Resources to collect land transfer fees. The land trading center where Lin is located is only a public institution, which only completes the work of assisting in collecting land transfer fees. Therefore, Lin committed the crime of dereliction of duty in the process of collecting land transfer fees, and the "authority" of his crime did not exist first.
2. How to understand "abuse"
The so-called abuse of power refers to the exercise of power against the purpose authorized by law, beyond the scope of power or in violation of the procedures for exercising power, and the performance of duties with improper purposes or illegal methods. Including subjectively playing with authority, doing whatever you want, and objectively surpassing and violating authority.
On the other hand, in this case, the procuratorial organ found that Lin's dereliction of duty was based on Guo Fa (200 1)No. 15, and believed that Lin violated the procedure of exercising his functions and powers. However, document Guofa (200 1) 15 has no direct enforcement effect at all. Before the specific implementation specification was issued, Lin could only calculate the land transfer fee that should be charged according to the provisions of County Land and Resources Bureau 1999, which is understandable. In this way, Lin subjectively did not apply the provisions of the Bureau of Land and Resources 1999 because he was irresponsible for his work, but objectively applied the provisions of 1999 because there were no other specific implementation norms. Therefore, Lin does not meet the crime of dereliction of duty at all.
Therefore, the situation of the Lin case is just a general work mistake. Work error is an act in which the actor makes mistakes due to unclear policies and low professional ability and level, resulting in losses to public property, the state and the people's interests. This is essentially different from dereliction of duty and cannot be regarded as dereliction of duty.