1. Order of relevant legal provisions for "personal use" The "Answers to Several Questions Regarding the Implementation of the "Supplementary Provisions on Punishing the Crime of Corruption and Bribery" (issued in 1989 and has expired)" stipulates: "Supplementary Provisions" "Article 3" Supplementary Provisions "The misappropriation of public funds for personal use" stipulated in Article 3 of the "Supplementary Provisions" includes the misappropriator's own use or the use of other individuals. After misappropriating public funds, if the misappropriated public funds are handed over to enterprises, institutions, agencies, or groups in the name of an individual for personal gain, it shall be classified as misappropriation of public funds for personal use. The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Misappropriation of Public Funds (promulgated in 1998) stipulates: "Misappropriation of public funds for personal use" as stipulated in Article 1 and Article 384 of the Criminal Law includes misappropriation of public funds for personal use. Use or for the use of others. Misappropriation of public funds for private companies or enterprises is considered misappropriation of public funds for personal use. Reply of the Supreme People's Procuratorate on the Application of Laws Concerning the Misappropriation of Public Funds for Private Companies and Private Enterprises (issued in 2000, expired) Henan Provincial People's Procuratorate: Your court's "Regarding the Misappropriation of Public Funds for Use by Private Companies and Private Enterprises" Request for Instructions on Issues Composing a Crime and Applying the Law" (Yuguanyan [1999] No. 12) received. It is believed that the act of misappropriating public funds to private companies and enterprises, whether it occurs before or after the revision of the criminal law, may constitute the crime of misappropriation of public funds. As for the application of law to specific acts, they should be based on the time when the acts occurred, the relevant provisions of the Criminal Law and the "Several Issues Concerning the Implementation of the Supplementary Provisions on Punishing the Crime of Corruption and Bribery" issued by the Supreme People's Court and the Supreme People's Procuratorate on November 6, 1989. Answers" and the provisions of the Supreme People's Court's "Interpretations on Several Issues Concerning the Specific Application of Law in the Trial of Misappropriation of Public Funds Cases" issued on May 9, 1998. deal with. The Interpretation of the Supreme People's Court on Relevant Issues Concerning Determining that Misappropriation of Public Funds Belongs to Personal Use (issued in 2001 and has expired) stipulates that in order to punish criminal activities of misappropriation of public funds in accordance with the law, in accordance with the relevant provisions of the Criminal Law, the relevant provisions on how to determine that misappropriation of public funds are for personal use are hereby The problem is explained as follows: Article 1: State staff take advantage of their positions to lend public funds to other natural persons or natural persons who do not have the identity of the loan recipients. Article 1 If a state functionary takes advantage of his position to lend public funds to other natural persons or sole proprietorships or private partnerships without legal person status, it shall be deemed as misappropriation of public funds for personal use. Article 2 If a state functionary takes advantage of his or her position to lend public funds to other organizations in his or her own name for personal benefit, it is deemed as misappropriation of public funds for personal use. The National People's Congress Standing Committee's "Interpretation of Article 384, Paragraph 1 (Effective in 2002)" stipulates that any of the following circumstances constitutes misappropriation of public funds for "personal use": (1) Taking public funds for one's own use Yes, for the use of relatives, friends or other natural persons; (2) Taking public funds as one's own in an individual's name for use by other units; (3) Taking public funds as one's own for use by other units; (4) Taking public funds as one's own for use by other units; (4) Taking public funds as one's own for use by other units; Pursuing public funds as one's own and for use by other entities. (3) An individual decides to use public funds in the name of the unit for other units for private gain. The Supreme People's Court's "Minutes of the National Court Symposium on Trial of Economic Crime Cases (Issued in 2003)" IV. Determination of the Crime of Misappropriation of Public Funds (1) The determination of the act of the unit's decision to give public funds to individuals for personal use has been collectively studied and decided by the unit's leadership team If public funds are given to individuals for personal use, or if the person in charge of the unit decides to give public funds to individuals for the benefit of the unit, they shall not be convicted and punished for the crime of misappropriation of public funds. If a crime is committed, the relevant responsible persons shall be convicted and punished in accordance with the relevant provisions of the criminal law.
(2) Determination of misappropriation of public funds for use by other units. In judicial practice, the determination of whether misappropriation of public funds for use by other units is "in the name of an individual" cannot just look at the form, but must grasp the essence. If the actor artificially avoids financial supervision, or agrees with the user to do so in his or her own name, or if the loan and repayment are made in the name of an individual, and the public funds are handed over to other units for use, it should be deemed "in the name of an individual." The so-called "personal decision" includes both decisions made by the actor within the scope of his authority and decisions made beyond the scope of his authority. The term "personal interests" includes situations where the actor and the user have agreed in advance to seek personal interests but have not yet succeeded, as well as situations where personal interests have been actually obtained without prior agreement. The "personal interests" here include both improper interests and Including legitimate interests; including both property interests and non-property interests, but such non-property interests should be specific actual interests, such as further education, employment, etc. (5) Misappropriation of public funds to repay personal debts. When public funds are returned to individuals for arrears, the circumstances of the misappropriation of public funds shall be determined based on the reasons for the arrears. Arrears resulting from the return of public funds to individuals for illegal activities or profit-making activities shall be deemed to be misappropriation of public funds for illegal activities or for profit-making activities. For-profit activities. 2. The subject scope of "personal use" is the subject scope. It does not mean that public funds are used for personal use. According to the above legal provisions, "personal use" includes the following subjects (1). ) Natural persons According to relevant legal provisions, public funds used by natural persons, including themselves and others, are in principle "for personal use" no matter what the circumstances. However, there are exceptions. In 2003, the Supreme People's Court "National Courts Hearing Economic Crime Cases". "Minutes of the Symposium" stipulates that if the unit leaders collectively decide to hand over public funds to individuals for use, or if the unit leaders decide to hand over public funds to individuals for the benefit of the unit, they will not be convicted and punished for the crime of misappropriation of public funds. (2) Unit 1. The distinction between public and private matters is whether misappropriation of public funds to units is considered "personal use". The earliest legal provisions are that misappropriation of public funds to state-owned units and collective ownership units does not constitute "personal use". The object of the crime of misappropriation of public funds is the right to use public funds, which is essentially "private use of public funds". However, from a macro perspective, public funds are owned by state-owned or collectively owned units, which does not change the public nature of public funds, the right to use public funds and the benefits. The power still belongs to the state, and the meat is rotten in the pot. What needs to be punished is only the violation of the public funds management system during the misappropriation process, which can be dealt with in accordance with the "Answers to Several Issues Regarding the Implementation of the Punishment of Corruption and Bribery Crimes" promulgated in 1989. The Opinions of "Expired)" adheres to this idea, which stipulates that "whoever misappropriates public funds and seeks private gains in his own name and misappropriates public funds to enterprises, institutions, agencies, or groups shall use the misappropriated public funds for personal use." "The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Misappropriation of Public Funds" promulgated in 1998 also inherits this idea and stipulates that "misappropriation of public funds for private companies or enterprises is classified as "misappropriation of public funds for personal use." Misappropriation Public funds belong to personal use." Some friends may question: This only mentions that private enterprises are "for personal use", but it does not say that misappropriation of public-owned enterprises is not "for personal use". This must take into account one of the most basic principles of criminal law - the principle of legality of crime and punishment. If the law does not expressly stipulate that it is not a crime, as long as the criminal law does not say that a certain situation is a crime, it is equivalent to declaring that this behavior is not a crime. This rule has since changed. The "Interpretation of the Supreme People's Court on Issues Concerning How to Determine Misappropriation of Public Funds for Personal Use (Invalid)" issued in 2001 only stipulates that "Lending public funds to other units in an individual's name for personal gain is considered misappropriation of public funds for personal use." "The 2003 legislative interpretation of the National People's Congress Standing Committee stipulates that "public funds should be used by other units in the name of an individual, and an individual decides to use public funds in the name of an unit for use by other units for personal gain." According to the principle that the new law is superior to the old law, subsequent laws and regulations do not distinguish between units in the use of funds, and all funds misappropriated by units are misappropriated as public funds "for personal use."
2. Whether private enterprises have legal person status. In addition to the distinction between public and private, the 2001 Judicial Interpretation also made a distinction based on whether private enterprises have legal person status. "Lending public funds in the name of an individual to other natural persons or private individuals without legal person status" Sole proprietorships, private partnerships, etc. are classified as misappropriation of public funds for personal use. "Lending funds to private enterprises without legal personality is deemed to be lending for personal use, while lending funds to units with legal personality is not clear in the explanation. enumerate. But this explanation is no longer valid. The legislative interpretation of the Standing Committee of the National People's Congress in 2002 unified the regulations for all units, and "any public funds used by other units in the name of an individual, or an individual who decides to use public funds in the name of the unit for other units to use for private gain" are deemed to be "personally owned" Use", which made a conclusion for the subject of the crime of misappropriation of public funds. 3. Lending public funds to other units in the name of an individual. Lending public funds of the unit to other units in the name of an individual. In this case, the public funds of the unit are essentially managed by oneself first, and then the public funds are disposed of by oneself. Therefore, in this case It is easy to understand that it is misappropriation of public funds for personal use. But there are different understandings of what is meant in a personal name. In 2003, the Supreme People's Court's "Minutes of the National Court Symposium on Trial of Economic Crime Cases" stipulated that there are three main situations when lending public funds of an organization in an individual's name. "In judicial practice, for other units that use public funds, to judge whether they are "in the name of an individual", we cannot just look at the form, but must grasp the essence. For actors who artificially avoid financial supervision, or agree with the user to do so in their personal name, or Borrowing and repayment are all done in the name of an individual. If public funds are handed over to other units for use, it should be regarded as "in the name of an individual." "Simply put, it is an illegal use of funds in the name of an individual, but in the actual name of an individual."
4. An individual decides to lend in the name of the company to seek personal interests. There are two conditions for this to constitute a crime. One is an individual decision, not a collective decision, and the other is seeking personal interests. The personal decisions here include both decisions within the actor's scope of authority and decisions beyond the scope of authority. Previous judicial practice believed that only decisions that exceeded the scope of authority were included. However, there are two difficulties in doing so. One difficulty is that the authority of some units is unclear and the scope of authority is very large, making it difficult to operate. There is another question. If a person joins the party and has the authority to transfer 1 million yuan, but he transfers 2 million yuan, in this case, should the full amount be calculated or only the excess amount? Because this kind of decision is made by an individual to seek personal interests, no matter whether it is within the scope of his or her authority, this behavior is essentially an individual using public funds as a means to obtain benefits. There is an essential difference in whether it exceeds the authority. There are two forms of personal interests. One is that both parties decide to reach an agreement, regardless of whether he actually obtains the benefits; the other is that the two parties do not reach an agreement, but he actually obtains personal interests. Personal interests here include both legitimate interests and abnormal interests, including material interests and non-material interests. Material benefits such as money, etc., and non-material benefits such as employment quotas, etc. But in either case, it is not a matter of personal interests. But in either case, the interests pursued should be specific and practical interests. For example, a problem often encountered in practice is that a person lends money to a classmate's work, but does not receive any actual benefits. Some people believe that this behavior enhances the interpersonal relationship between each other and increases feelings, which is also a benefit because it may be beneficial in the future. However, in this case, as long as there is no actual benefit, there should still be evidence to prove that the two people are consistent on the issue of interest, and any increase in feelings cannot be evaluated as an interest. Otherwise, the scope of the crime will be too broad and inconsistent with the original intention of the legislation.
5. Extraction of defense viewpoints Based on the above analysis, there are several entry points for the defense of innocence on the issue of misappropriation of public funds for "personal use": 1. Whether the misappropriation of public funds for natural persons' use has been through Discuss collectively; 2. If it is used by an organization, is it lent in the name of an individual? 3. If it is lent in the name of an organization, is it a personal decision? 4. If an individual decides to lend in the name of an organization, is it seeking personal gain? 5. If If it is considered to be a personal interest, is it an agreed interest or an actual interest; 6. If no actual interest is found, is there an agreed interest, an agreed interest, an agreed interest, or an actual interest; 6. If no actual interest is found; 6. If no actual interest is found; When the interests are seized, whether there are agreed interests, and whether the agreed interests are clear, specific, and verifiable interests. above!