How to effectively defend criminal suspects who misappropriate funds? We believe that we should at least master the following basic legal provisions and judicial interpretations of this crime. On this basis, the Beijing criminal defense lawyers group conducted targeted analysis and demonstration according to the specific facts of the suspects involved, and put forward specific defense plans. Defending by powerful defense lawyers or defense lawyers will protect the legitimate rights and interests of criminal suspects to the greatest extent.
Criminal defense is a hard work, which often involves difficult investigation and evidence collection. Then, according to the results of investigation and evidence collection, put forward materials and opinions to prove the innocence, light crime or reduction or exemption of criminal responsibility of criminal suspects and defendants, and safeguard their legitimate rights and interests.
To protect the legitimate rights and interests of criminal suspects to the maximum extent, it is necessary not only to master the legal provisions of this kind of crime in China and the judicial interpretation of the Supreme Court, but also to know the provisions of criminal law on crime and non-crime, this crime and that crime; We also need careful thinking ability, grasp the actual case of the criminal suspect, and then combine the actual case with the provisions of national laws, trying to find out the essential difference between the criminal suspect's behavior and the provisions of the criminal law, so as to avoid the judicial organs from convicting the criminal suspect accordingly. If the criminal suspect has indeed constituted a crime, there is no doubt that the lawyer's duty is to try to find the legal basis and factual reasons for the criminal suspect to reduce his punishment. In a word, the task of criminal defense lawyers is to provide effective defense for criminal suspects as much as possible according to the laws and regulations of China.
Sometimes, some criminal cases are particularly difficult, and the legal relationship involved is particularly complicated. Our Beijing criminal defense lawyers' group also employs experts such as law professors and researchers to conduct legal expert argumentation on such extremely difficult criminal cases, and issue authoritative legal expert opinions to provide your relatives and friends with favorable defense opinions of innocence, mitigation or exemption from criminal responsibility.
The laws, regulations and judicial interpretations of the crime of misappropriating funds are as follows:
[Interpretation]
This crime refers to the act of directors, supervisors, employees or other employees of non-state-owned enterprises taking advantage of their positions or work to misappropriate the funds of their own units, which constitutes a crime.
[Criminal Law Provisions]
Article 272 Any employee of a company, enterprise or other unit who, by taking advantage of his position, misappropriates the funds of his unit for personal use or lends them to others, and the amount is relatively large, which has not been paid back for more than three months, or, although it has not been more than three months, the amount is relatively large, and he is engaged in profit-making activities or illegal activities, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever misappropriates the funds of his own unit in a huge amount, or fails to return the funds in a large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
Personnel engaged in public service in state-owned companies, enterprises or other state-owned units and personnel appointed by state-owned companies, enterprises or other state-owned units to engage in public service in non-state-owned companies, enterprises or other units shall be convicted and punished in accordance with the provisions of Article 384 of this Law.
Article 185 Paragraph 1 Any employee of a bank or other financial institution who misappropriates the funds of his own unit or client by taking advantage of his position shall be convicted and punished in accordance with the provisions of Article 272 of this Law.
Two. The criminal law amendment stipulates that:
7. Article 185 of the Criminal Law is amended as: "Any staff member of a commercial bank, a stock exchange, a futures exchange, a securities company, a futures brokerage company, an insurance company or any other financial institution who misappropriates the funds of his own unit or clients by taking advantage of his position shall be convicted and punished in accordance with the provisions of Article 272 of this Law.
Staff of state-owned commercial banks, stock exchanges, futures exchanges, securities companies, futures brokerage companies, insurance companies or other state-owned financial institutions, and personnel assigned by state-owned commercial banks, stock exchanges, futures exchanges, securities companies, futures brokerage companies, insurance companies or other state-owned financial institutions to engage in public service in non-state-owned institutions as mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Article 384 of this Law.
Three. Relevant laws and judicial interpretations:
Paragraph 2 of Article 214 of the Company Law stipulates that directors, supervisors and managers who use their powers to accept bribes or other illegal income, or misappropriate the company's property, shall confiscate their illegal income and be ordered to return the company's property, which shall be punished by the company. If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 193 of the Securities Law: Securities companies, securities registration and settlement institutions and their employees who buy, sell, misappropriate or lend securities in customers' accounts, or misappropriate funds in customers' accounts with customers' securities as collateral, shall be ordered to make corrections, confiscate their illegal income, impose a fine of more than one time but less than five times their illegal income, and order them to close down or revoke the professional qualification certificate of the responsible person. If a crime is constituted, criminal responsibility shall be investigated according to law.
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery, Corruption and Embezzlement in Violation of the Company Law (Fa Fa Fa Fa [1996.5438+02.25] No.23).
3. According to Article 11 of the Decision, directors, supervisors and employees of companies and other enterprises, taking advantage of their positions, misappropriate the funds of their own units for personal use or lend them to others, and the amount is relatively large, which has not been paid back for more than three months, or although it has not exceeded three months, the amount is relatively large, which constitutes the crime of misappropriation of funds. Whoever misappropriates the funds of his unit from 10,000 yuan to 30,000 yuan in the implementation of the acts specified in Article 11 of the Decision shall be regarded as a "large amount", and whoever misappropriates the funds of his unit from 5,000 yuan to 20,000 yuan for illegal activities shall be investigated for criminal responsibility according to law.
If the people's procuratorate does not return the funds of the unit after the misappropriation case occurs, it shall be convicted and punished in accordance with the provisions of Article 10 of the Decision.
[description]
First, the subject of this crime is a special subject except the national staff. Objectively speaking, the behavior characteristics that constitute a crime are basically the same as the crime of misappropriating public funds, but the difference is that the subject is a non-state employee. This money is not public money either.
Second, before the execution of criminal confiscation, if the subject of this crime is liable for civil compensation and his property is not enough to pay, he should bear the civil liability first to protect the civil rights and interests of others, except for the civil liability that this crime does not bear.
Thirdly, this crime is newly established according to the relevant decisions of the National People's Congress Standing Committee (NPCSC), but the sentencing has been adjusted, which is not stipulated in the Criminal Law of 1979.
4. Employees of non-state-owned banks or financial institutions, securities agencies and settlement institutions who misappropriate the funds of units or clients, which constitutes a crime, shall be punished for this crime. According to the judicial interpretation of the Supreme Court, this crime also applies to non-state staff in companies, enterprises and other systems who misappropriate funds for their own use or that of others or units, which constitutes a crime. If the staff of a state-owned bank or financial institution misappropriates the funds of a unit or a client, which constitutes a crime, it shall be punished as the crime of misappropriating public funds.
Five, the new "Criminal Law" stipulates that misappropriation of funds will not be returned, and will no longer be convicted of embezzlement. And directly sentence this crime to a higher level.
Six, the Supreme People's Court's judicial interpretation, based on the National People's Congress Standing Committee (NPCSC)'s decision has been abolished, but the specific implementation standards, before the introduction of a new judicial interpretation, there is still applicable value.
Seven, this crime and "misappropriation of public funds" are actually very similar, but the object of crime is different. Liu Hu and Min's maximum death penalty and swimming police's maximum imprisonment will only be 15 years, which reflects the special protection of public property by national laws. But it also reflects the unequal protection of public and private property. Similarly, there are crimes of corruption and job embezzlement. Wait for the development of criminal law theory in the future and ask whether the unified personnel can become the subject of the crime of misappropriating public funds)} Received. After study, the reply is as follows:
Non-state functionaries entrusted by state organs, state-owned companies, enterprises, institutions and people's organizations to manage state-owned property, taking advantage of their positions, misappropriate state-owned funds for personal use, which constitutes a crime, shall be convicted and punished in accordance with the provisions of the first paragraph of Article 272 of the Criminal Law.
Reply of the Supreme People's Court on how to understand the problem of "misappropriating the funds of the unit for personal use or lending them to others" as stipulated in Article 272 of the Criminal Law (No.22 [2000] of July 20, 2000)
Higher People's Court of Xinjiang Uygur Autonomous Region:
Request for instructions on how to understand the provision of "misappropriating the funds of the unit for personal use or lending them to others" in the Criminal Law (193).
Roger that. After study, the reply is as follows:
If a non-state employee of a company, enterprise or other unit takes advantage of his position to misappropriate the funds of his own unit for his own use or that of other natural persons, or misappropriates the misappropriated funds to other natural persons or units in his own name, which constitutes a crime, he shall be convicted and punished in accordance with the provisions of the first paragraph of Article 272 of the Criminal Law.
Reply of the Supreme People's Procuratorate on the Applicable Law of Misappropriation of Company Funds (2000. 10.9 Gao Jian Fa Yan Zi {1995} 19).
Jiangsu Provincial People's Procuratorate:
Your request for instructions on whether misappropriation of unregistered company funds can constitute the crime of misappropriation of funds has been received. After study, the reply is as follows:
Before the company is registered, the staff of the preparatory company take advantage of their positions to misappropriate the funds in the temporary account opened by the company in the bank for personal use or lend them to others. If a large amount has not been paid back for more than three months, or if a large amount is engaged in profit-making activities or illegal activities, criminal responsibility shall be investigated in accordance with the provisions of Article 272 of the Criminal Law.