This article comes from "Essential Core Skills for Discipline Inspection and Supervision Cadres
This article comes from "Essential Core Skills for Discipline Inspection and Supervision Cadres".
How to determine the behavior of privately setting up "small treasury"
After the revision of the "Regulations on Disciplinary Action within the Party of Chinese Producers", there is no violation of financial discipline regulations. In this case, it is very necessary to discuss whether actions such as setting up a private "small treasury" constitute a violation of discipline. If it constitutes a violation of discipline, how to accurately apply disciplinary provisions and impose corresponding sanctions is a common problem in disciplinary practice. This article discusses the characterization and punishment of "small treasury" cases based on actual conditions.
1. The Concept and Classification of Small Treasurys
The Ministry of Finance, the Audit Office, and the People's Bank of China's "Opinions on Cleaning Up and Inspecting "Little Treasurys" stipulate that any violation of national financial regulations and According to other relevant provisions, funds that occupy or withhold state and unit income, are not included in the accounts of the unit's financial accounting department or are not included in budget management, and are kept privately, all belong to "small treasury".
According to the Central Commission for Discipline Inspection's "Interpretations on Several Issues Concerning the Application of the "Regulations on Disciplinary Punishments of the Communist Party of China" (1) (Zhongfa [2009] No. 20), "small treasury" refers to those who violate laws, regulations and other Relevant regulations should include various funds in the unit's account books that comply with the regulations.
"Little Treasury" is classified according to different standards. The "Implementation Measures for the Special Management of "Small Treasurys" in Party and Government Agencies and Public Institutions" (Zhongfa [2009] No. 7) issued by the Central Commission for Discipline Inspection and other four ministries and commissions stipulates the manifestations of "small treasuries", which mainly include the following.
(1) Establishment of "small treasury" for illegal charges, fines and apportionment
Related cases: The case of Zheng Moumou, secretary of the Party branch of a certain village. Zheng Moumou's village is under construction in the village road. Although the project could be funded by the relevant higher-level departments, Zheng Moumou still held a village representative meeting in accordance with the "one matter, one discussion" fund-raising and labor-raising procedure, raised 12,000 yuan in funds by charging villagers, and entrusted the village accountant with the collected funds. Settle village-level historical accounts and then pay village-level daily affairs expenses.
The "Notice of the General Office of the State Council forwarding the Measures for the Management of Villagers' Financing and Labor Raising from the Ministry of Agriculture" (Guobanfa [2007] No. 4) stipulates that in order to establish collective production, life and other public welfare undertakings that directly benefit villagers, villagers must Work can be done through democratic procedures.
At the same time, it is stipulated to clarify the items paid by financial departments at all levels, as well as the fees and services required for debt repayment, corporate losses, village affairs management, etc. , shall not be included in the scope of financing and labor raising. When the relevant superior departments allocate funds for road construction, it is illegal for the village to allocate road construction funds to villagers. The behavior of Zheng Moumou, secretary of the party branch of the village, is a case of illegal allocation of fees to establish a "small treasury".
(2) Use income from asset disposal and rental to establish a "small treasury".
Related case: Gong Moumou, the party branch secretary of a certain village, violated discipline. The village obtained collective village income of 102,020 yuan by renting out houses. According to the resolution of the two village committees, Gong Moumou did not deposit the above funds into the village collective legal person account as required. Instead, he entrusted the village accountant to keep the above fees for safekeeping and used them to pay for the village collective banquet expenses and other expenses that cannot be reimbursed. The "Accounting System for Village Collective Economic Organizations" stipulates that cash obtained by village collective economic organizations must be recorded in accounts in a timely manner, and public funds must not be transferred to the treasury for nothing, used as expenses, misappropriated or privately distributed. Therefore, the rental fees collected by the village should be recorded in the village collective legal person account in a timely manner.
Gong Moumou, secretary of the party branch of the village, should have included the amount in the account books of the unit that complied with the regulations, but failed to include it, which is a case of establishing a "small treasury" with rental income.
(3) In the name of conference fees, labor fees, training fees, consulting fees, etc. , setting up a "small treasury"
Related cases: In Xu's disciplinary case, Xu took advantage of his position in handling meetings to collude with hotel staff. The hotel staff handed over fictitious additional conference funds to Xu by inflating the number of participants and fabricating expert teaching fees, and Xu handed the money to the accountant for safekeeping to pay for the illegal entertainment.
The "Regulations on Party and Government Organs Strictly Implementing Economy and Opposing Waste" (Zhongfa [2013] No. 13) issued by the Central Committee and the State Council stipulates that the conference fee reimbursement system should be improved. Unapproved, out-of-scope and standard meeting expenses will not be reimbursed. It is strictly prohibited to use conference fees to purchase office equipment in violation of regulations. It is strictly prohibited to charge official reception fees and any other expenses unrelated to the conference, and it is strictly prohibited to obtain conference funds.
Xu used funds to pay for illegal entertainment by falsely increasing the number of participants and fabricating expert lecture fees, which constituted the establishment of a "small treasury" in the name of conference fees.
(4) Operating income is not included in the accounting books as required and a "small treasury" is established
In disciplinary practice, we found that some operating income requires special supervision methods. Due to work needs, special account books are sometimes set up, and operating income needs to be included in the special account books. If the operating income is not deposited in special account books as required, the corresponding operating income is deliberately divested or evaded from supervision. For example, according to regulations, a certain type of operating income should be included in the A account book, but if it is not included in the B account book according to the regulations, it should be recognized as a "small treasury".
(5) Transferring funds through fictitious expenditures to establish a "small treasury".
Relevant case: The disciplinary violation of Ye Moumou, the party branch secretary of a certain village. After discussing with other cadres of the two village committees, Ye Moumou decided to use part of the money from the village center construction project for expenses that could not be reimbursed by the village. In the name of the village center construction project, he falsely applied for 40,000 yuan in project funds, defrauded 40,000 yuan of project funds, and used more than 20,000 yuan to pay for meals owed by the village due to banquets and public funds in recent years.
(6) Using fake invoices and other illegal bills to defraud funds to establish a "small treasury".
This situation is intertwined and mixed with the disciplinary measures for the third and fifth situations mentioned above. In the practice of disciplinary enforcement, we found that those who raised funds to set up small treasury in the name of conference fees, labor fees, training fees, consulting fees, etc., and transferred funds to set up small treasury with fictitious expenses, usually used fake invoices to enter the company account. Funds are fraudulently withdrawn and the cash is placed in the custody of a designated person to pay related fees.
(7) Transfer funds between superior and subordinate units to establish "small treasury".
Transfer the company's funds to the accounts of subordinate companies for accounting. Although the accounts of subsidiary companies are also formal accounts and should be subject to normal supervision, supervision will be weakened after the funds are "inverted". Similarly, if the unit's administrative funds are transferred to the labor union or canteen account for accounting, the expenditure is actually controlled and directed by the unit. The essence of deliberately weakening supervision has not changed, and it should still be treated as the establishment of a "small treasury" [2].
The notice "Yunnan Postal Savings Bank Zhaotong Branch deposited rental income into the trade union account and established a "small treasury"" published on the website of the Central Commission for Discipline Inspection and the State Supervision Commission on July 19, 2005 stated that the bank In 2013, the rental income was deposited into the trade union account and used to organize Zhaotong branch leaders, middle-level managers, first- and second-level branch heads, advanced employees, and outstanding employees to join the trade union account.
After study by the Party Committee of Yunnan Branch, it was decided to give Feng, the then president of Zhaotong Branch, administrative demotion. Yunnan Postal Savings Bank Zhaotong Branch deposited relevant rental income into the trade union account for accounting. It was actually used and controlled by the bank, which weakened the supervision of relevant departments and was still regarded as a private "small treasury". Compared with the establishment of "small treasury" by transferring funds between superior and subordinate units, * * has been weakened or separated from supervision.
In disciplinary practice, we need to pay attention to the following two issues:
1. After corruption, using stolen money to set up a "small treasury" to avoid punishment should be regarded as corruption, rather than setting up a "small treasury" Disciplinary violations of "small treasury"
Related cases: From 2003 to 2008, while assisting the superior people's government in managing and distributing funds for poverty alleviation projects, Wang took advantage of his position as secretary of the village party branch to falsely report poverty. He defrauded more than 50,000 yuan of poverty alleviation project funds from superior financial departments through various methods such as the number of households.
Later, Wang learned that the village accountant was under investigation by the Discipline Inspection Commission, so he mixed more than 50,000 yuan into the village's small treasury account and used the money for village expenses. Analysis: Wang took advantage of his position to defraud poverty alleviation project funds from higher-level financial departments by falsely increasing the number of households relocated down the mountain, which not only violated the integrity of state workers, but also violated the ownership of public property. His behavior complied with the constituent elements of the crime of corruption, and he later set up a "small treasury" to avoid punishment. This was the disposal of the stolen money after the crime of corruption was completed, and it was an unforgivable behavior afterwards.
Article 16 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery" stipulates that for the purpose of corruption and bribery, state employees illegally possess public property and receive money from others. Property does not affect the determination of the crime of corruption and bribery, but it can be taken into consideration when sentencing. Therefore, in practice, if a state employee uses stolen money to set up a "small treasury" to avoid punishment and then uses it for official expenditure after corruption, it should be deemed a crime of corruption.
2. We must grasp the boundaries between violations and corruption of "small treasury".
If funds from a small treasury are deposited into a private account, it will be presumed to be corruption. In practice, we should distinguish "petty cash" violations and corruption based on the following evidence:
(1) Whether the establishment of the account has been decided by the main person in charge of the unit or studied collectively; (2) The funds in the account Whether it is used for official expenses, whether there are relevant invoices and corresponding witnesses; (3) whether the personal account for setting up a "small treasury" is separated from my other private accounts; (4) whether the bank card or passbook of the account is kept in the office or by Safekeeping by personnel from other units; (5) Whether relevant personnel are aware of the establishment of the “small treasury”.
Related cases [3]: The reason why the judgment failed to determine that Ren Moumou was corrupt is because the existing evidence in the book can be mutually corroborated and fully proves that Honghe Prefecture is responsible for "green lighting, entering new rural areas, and promoting innovation." The Energy Conservation Supervision Section of the Honghe Economic Commission for the "Life" activity obtained public funds of RMB 215,000 through various channels and methods. It was not turned over to the unit's financial account. Instead, according to the arrangement and consent of the leader in charge Zhao, it was kept by individuals as the unit's "small treasury." Use of funds. Among them, 60,000 yuan was used for the promotion of energy-saving lamps and other official activities of the department. Although these behaviors violated relevant national administrative regulations and financial management systems, they did not meet the constituent elements of the crime of corruption stipulated in Article 382 of the Criminal Law. The crime of corruption is a property-based official crime for the purpose of illegal possession. Ren Moumou's establishment of a "small treasury" was decided by the leader in charge and was used for official expenses. There was no subjective purpose of illegal possession. In the end, the court did not find Ren Moumou guilty of corruption. From a disciplinary perspective, although Ren's behavior cannot be considered corruption, it constitutes a "small treasury" violation of discipline.
2. The characterization and applicable provisions of illegal activities such as "small treasury".
(1) The establishment of "small treasury" and the application of the terms.
The "Interpretation of the Central Commission for Discipline Inspection on Several Issues Concerning the Application of the "Regulations on Disciplinary Punishments within the Chinese Producers Party" to the disciplinary violations of the establishment of small treasury and the use of small treasury funds" (Zhongfa [2009] No. 20) stipulates that the establishment of small treasury For treasury, the provisions of Article 126 of the "Regulations on Disciplinary Punishments within the Chinese Producers Party" shall apply.
In the 2015 revision of the "Regulations on Disciplinary Punishment of the Communist Party of China", we adhered to the principles of discipline prior to law, discipline stricter than law, and separation of discipline and law, so that all provisions of national laws and regulations Without repetition, suspected crimes, general criminal violations and other illegal activities are stipulated in a separate chapter in the general provisions, achieving an effective connection between disciplinary sanctions and national legal treatment. 49666.86868686667
Article 28 of the "Regulations on Disciplinary Punishment of the Communist Party of China" includes general criminal violations and other illegal acts, where "other illegal acts" refers to violations other than suspected crimes and general criminal violations In addition, violations of other laws, rules and regulations, including financial violations.
China’s relevant laws and regulations have formulated a series of laws and regulations on strengthening economic management and financial management and correcting financial violations. The establishment of "small treasury" is suspected of violating the prohibitive provisions of relevant national laws and regulations.
For example, Article 16 of the "Accounting Law" stipulates that all economic and business matters of each unit shall be registered and accounted for in accounting books set up in accordance with the law, and shall not violate this Law and the unified national accounting regulations. system for registration and accounting.
Article 17 of the "Regulations on Punishments for Fiscal Illegal Acts" stipulates that if units and individuals violate financial management regulations and keep fiscal funds or other public funds privately, they shall be ordered to make corrections, adjust relevant accounting accounts, and recover the private funds. Deposit funds and confiscate illegal gains. The unit shall be fined not less than 3,000 yuan but not more than 50,000 yuan; the directly responsible person in charge and other directly responsible personnel shall be fined not less than 2,000 yuan but not more than 20,000 yuan.
Those who are national civil servants shall also be given disciplinary sanctions; if the circumstances are serious, they shall be demoted or dismissed. The State Council's "Decision on Strengthening the Management of Extra-budgetary Funds", "Interim Provisions on Administrative Penalties for Violations of Administrative Charges and Fines and Confiscation of Expenditure Management Regulations" and other related financial and economic violations have also made relevant provisions.
Therefore, any disciplinary violations investigated and punished in the practice of discipline enforcement involving the establishment of "small treasury" shall be subject to party disciplinary sanctions in accordance with the provisions of Article 28 of the "China Production Regulations on Intra-Party Disciplinary Punishments".
(2) Qualification and applicable terms of illegal activities using "small treasury" funds.
In "small treasury" disciplinary violations cases, the establishment of a "small treasury" is not the ultimate purpose of the violation, but is often accompanied by the use of the "small treasury" funds, that is, the use of the "small treasury" funds becomes the basis for the establishment of a "small treasury" The purpose of "small treasury". At this time, it is necessary to introduce the situation of disciplinary violations.
Implicated violations have three characteristics: first, there are more than two disciplinary violations of different natures; second, there must be an implicated relationship between several violations; third, these violations are based on the same punishment Purpose. Due to the existence of meaning, several disciplinary violations of party members must be manifested in the relationship between means behavior and purpose behavior, cause behavior and result behavior, etc. Several behaviors are interdependent and * * * together constitute a complete form of disciplinary behavior.
In handling the disciplinary cases of "small treasury", the author believes that the establishment of "small treasury" can be regarded as a means behavior, and evading supervision and using the funds of "small treasury" can be regarded as an end behavior. Means behavior and purpose behavior constitutes an implicated relationship and should be dealt with seriously.
If the funds in the "small treasury" are not used after the establishment, or the funds in the treasury are used, but the disciplinary violations are minor and there is no need to pursue party discipline responsibilities, you can set up a "small treasury" for qualitative and quantitative analysis. disciplinary sanctions; if a "small treasury" is set up but still uses funds from the small treasury and needs to be held accountable for party discipline, it should be dealt with in accordance with the disciplinary violations of using funds from the small treasury, that is, the disciplinary violations of setting up a "small treasury" will be absorbed by the disciplinary violations of using funds from the small treasury. .
At the same time, Article 9 of the "Interpretation of the Central Commission for Discipline Inspection on Several Issues Concerning the Application of the "Regulations on Disciplinary Punishments within the Party of Chinese Producers" to the disciplinary violations of the establishment and use of small treasury" stipulates that if there is an act of establishing or using a small treasury, If there are other disciplinary violations other than those specified in this interpretation that need to be consolidated and dealt with, the relevant responsible personnel shall be dealt with in accordance with "China."
According to the understanding of this article, if there are other disciplinary violations other than those specified in this interpretation that need to be consolidated, they can be consolidated in accordance with the principles of disciplinary punishment, that is, the disciplinary violation of establishing a "small treasury" can be combined with other disciplinary violations Consolidation, or disciplinary violations involving the use of "small treasury" funds can be consolidated with other disciplinary violations. However, the regulations on the establishment of "small treasury" or the use of "small treasury" do not indicate the need for merger.
When dealing with the establishment of "small treasury" and the use of "small treasury" funds, it is necessary to consider its relationship with related violations. Not all disciplinary violations related to "small treasury" are deemed to be violations of financial regulations. Qualitative and quantitative sanctions are implemented in accordance with the "Regulations on Disciplinary Punishments within the China Production Party". Where there are clear provisions, corresponding disciplinary responsibilities will be pursued based on specific disciplinary violations.
Anyone who uses a "small treasury" to pay for banquets, high-consumption entertainment and fitness activities, or uses a "small treasury" to purchase gifts or issue gifts shall be subject to Article 103 of the "Regulations on Disciplinary Punishment of Chinese Producers" Party discipline responsibilities shall be investigated in accordance with the provisions of Article 1; those who use "small treasury" funds for tourism shall be investigated for Party discipline responsibilities in accordance with the provisions of Article 105 of the "Regulations on Party Discipline Punishment of the Communist Party of China". This requires strict screening and cannot be generalized.
When dealing with "petty cash" violations, the use of "petty cash" funds must be investigated clearly. Only in this way can discipline be accurately characterized and measured.
Third, criminal acts involving "small treasury"
(1) Nature of funds of "small treasury"
The sources of funds of "small treasury" include Two aspects: either it is the legal income of the unit that has not entered the financial account, or it is the illegal income of the unit. For unrecorded legal income, it is just that it is not recorded in legal accounts in the form of financial management. This does not affect the ownership nature of the money, and it should obviously belong to public property.
As for the illegal gains of the unit, according to my country’s current laws, the illegal gains should generally be confiscated and turned over to the state. Although the property was not turned over to the state because it was not discovered and investigated when the act occurred, the ownership of prospective property that is essentially public property cannot be changed because it was not investigated. Therefore, the ownership of illegally obtained property ultimately belongs to the state and is a state-owned asset. Of course, it also conforms to the attributes of public property.
In addition, even if the funds in the "small treasury" should eventually be returned to the legal owners, according to the second paragraph of Article 91 of our country's "Criminal Law", "state agencies, state-owned companies, enterprises, collective enterprises "Private property managed, used or transported by people's organizations shall be regarded as public property" [4]. Determining the nature of the funds in the "little treasury" is crucial to determining the criminal conduct involved in the "little treasury".
(2) Criminal acts involving "small treasury"
1. Corruption
Related cases [5]: Sui Zai served as the medical director of urban employees in Zhaoyuan City When he was the financial section chief of the Insurance Department, he took advantage of his position in managing the accounts and funds of his unit’s “small treasury”. In September 2012, he conspired with Wang Moumou, the former director of the Zhaoyuan Municipal Employees’ Medical Insurance Department (handled in a separate case), to commit a crime against Wang Moumou. While a certain person was being transferred, he secretly shared the balance of the "small treasury".
In December 2012, after Wang was transferred from the Zhaoyuan City Urban Employee Medical Insurance Department, Sui and Wang jointly occupied a balance of 137,673.37 yuan in the unit's "small treasury"* *, of which Wang received 70,000 yuan in cash. Sui received 67,673.37 yuan in cash.
The crime of corruption refers to the crime of embezzling, stealing, defrauding, or using the convenience of their positions to embezzle, steal, defraud, or otherwise use the convenience of their positions by state functionaries and persons entrusted by state agencies, state-owned companies, enterprises, institutions, and people's organizations to operate and manage state-owned property. Other acts of illegally occupying public property. Sui and Wang took advantage of their positions to appropriate the funds of the "small treasury" for themselves. The funds in the "small treasury" belong to public property, and Sui's behavior meets the elements of the crime of corruption. In the end, the court found Sui guilty of corruption and sentenced him to six years in prison.
2. Crime of misappropriation of public funds
Related cases [6]: From 2007 to 2008 (11), Zhang Moumou served as deputy director and director of the Korla Maintenance Workshop of the Urumqi West Depot , has the power to control, decide and supervise the funds of the "small treasury". On September 4, 2007, Zhang Moumou took advantage of his position as deputy director of the Korla Maintenance Workshop of Urumqi West Depot to manage the "Little Treasury" and embezzled money from the "Little Treasury" bank card account (tail number: 0163) through Hong Mou 6.5438 million yuan, transferred to his personal bank card (last number: 4165438).
On April 23, 2008, while Zhang was serving as the director of the Korla Maintenance Workshop of the Urumqi West Depot, he took advantage of his position in managing the "small treasury" and transferred it to his personal bank card through Hong. Account (last number: 1752). The next day, Hong deposited 50,000 yuan into defendant Zhang's bank card account (last number: 4113). Later, Zhang Moumou transferred the above 200,000 yuan into his Hongyuan Securities account in two installments to engage in profit-making activities.
The author believes that the crime of embezzlement of public funds refers to the crime of misappropriation of public funds by state workers who take advantage of their positions to misappropriate public funds for personal use, engage in illegal activities, or misappropriate a relatively large amount of public funds for profit-making activities, or misappropriate a relatively large amount of public funds. Behavior that lasts for more than three months.
As a state employee, Zhang Moumou transferred the funds from the "small treasury" to the Hongyuan Securities account to engage in profit-making activities, which complied with the constituent elements of the crime of misappropriation of public funds. The court of first instance found Zhang Moumou guilty of embezzlement of public funds and sentenced him to one year and six months in prison. Zhang Moumou appealed to the court of second instance, which ruled to reject the appeal and uphold the original judgment.
In practice, when determining the crime of misappropriation of public funds for profit-making purposes, attention should be paid to the following issues: (1) As long as it is proved that the perpetrator used the misappropriated public funds to conduct profit-making activities, whether and how much profit was made It will not affect the conviction of the crime;
(2) It must be proven that the perpetrator embezzled a relatively large amount of public funds. According to the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery", if the amount of misappropriated public funds exceeds 50,000 yuan, it shall be deemed as a "large amount" under the criminal law;
< p>(3) There is no special limit on the time of misappropriation. As long as it is proven that the perpetrator has misappropriated a large amount of public funds for profit-making activities, he can be prosecuted for the crime of misappropriation of public funds. According to Article 2, Paragraph 2 of 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" (Fa Interpretation [1998] No. 9), "Misappropriation of public funds for personal profit-making activities shall constitute the crime of misappropriation of public funds." , not subject to restrictions on the time of misappropriation and whether to return it... Misappropriation of public funds to deposit in banks, raise funds, purchase stocks, treasury bonds, etc. belongs to misappropriation of public funds for profit-making activities... In this case, Zhang Moumou misappropriated public funds to purchase stocks, which is a profit-making activity. . If the amount of misappropriation is relatively large, it can be regarded as the crime of embezzlement regardless of the time of misappropriation.3. Crime of privately dividing state-owned assets
Related case facts [7]: Rao Moumou is in charge. When he was the director of the Economic Development Zone Police Station of the Huoshan County Public Security Bureau, he decided to arrange for the station to obtain more than 850,000 yuan by falsely reporting the salary of the auxiliary police, canteen expenses, and unaccounted income, and deposit it into the personal bank account of Li Moujia, a police officer at the station. , used as the unit's "small treasury".
Between the Spring Festival of 2014 and the Spring Festival of 2018, Rao violated national regulations and, after his decision and arrangement, secretly distributed 262,000 yuan of the above-mentioned "small treasury" funds to the police in the name of his unit eight times, among which Rao 45,000 yuan, Gong 20,000 yuan, Zhai 70,000 yuan, Li 70,000 yuan, and Kong 70,000 yuan.
The author believes that the crime of privately dividing state-owned assets refers to the behavior of state agencies, state-owned companies, enterprises, institutions, and people's organizations that violate national regulations and collectively privately distribute state-owned assets to individuals in the name of units. According to regulations, the subjects of the crime of privately dividing state-owned assets are state agencies, state-owned companies, enterprises, institutions, and people's organizations. This crime is a unit crime, but only the directly responsible person in charge and other directly responsible personnel who privately divide state-owned assets are punished.
As the directly responsible person in charge, Rao Moumou privately distributed the funds of the "small treasury" to individuals in the name of the unit, which complied with the constituent elements of the crime of privately distributing state-owned assets. The court of first instance found Rao guilty of the crime of privately dividing state-owned assets and sentenced him to six months' detention, suspended for ten months, and fined him RMB 654.38 million. Rao appealed to the second-instance court, which dismissed the appeal and upheld the original verdict.
In practice, attention should be paid to distinguishing between the crime of privately dividing state-owned assets and the crime of corruption:
(1) The performances are different. * * * The crime of corruption usually manifests itself as a person who illegally possesses public property * * * Taking advantage of his position * * * Usually in secret, and trying his best to smooth out the relevant accounts to cover up the fact of illegal possession of public property * * * .
The crime of privately dividing state-owned assets is a unit crime. Private distribution is controlled by the will of the unit and is carried out in a relatively open manner within the unit. The beneficiaries have the characteristics of the majority, and some have even kept detailed financial records.
(2) The scope of subjects bearing criminal liability is different. Anyone involved in corruption crimes will be held criminally responsible in accordance with the law. However, the crime of privately dividing state-owned assets can only be committed by the person directly in charge of the privately divided state-owned assets and other directly responsible personnel. Those who passively divide state-owned assets do not constitute a crime and only bear civil liability for the return of the distributed property.
4. Crime of abuse of power
Related cases [8]: When Li Moumou was the director of the Yuanyang County Immigration Development Bureau, he illegally exceeded his authority and collected 10161113.47 yuan of national immigration special funds. Deposit into the unit's "small treasury". This behavior did not change the nature of the collected funds as public funds, nor did it cause the loss of state-owned funds, nor did it lead to the failure of normal immigration work. It is inappropriate to consider the withdrawal of immigration-specific funds as a crime. However, Li Moumou decided to withdraw 347,000 yuan of funds to visit relevant leaders and treat guests and give gifts during holidays, withdraw 203,330 yuan for unit employees and migrant workers in the name of overtime pay, communication fees, etc., and provide Yang Moubing with an ID card of 5,000 yuan. Li Moumou's above-mentioned behavior violated relevant national disciplinary regulations and caused a loss of 555,330 yuan in state-owned funds, which should be determined.
As a staff member of a state agency, Li Moumou used special immigration funds to visit relevant leaders during the holidays and distributed them to employees of his unit, resulting in heavy losses of state-owned funds. His behavior complies with the constituent elements of the crime of abuse of power. The court of second instance sentenced Li to one year and six months in prison for the crime of abuse of power.
In summary, when dealing with disciplinary and illegal activities such as "small treasury", if there is only a disciplinary violation of the establishment of a "small treasury", the disciplinary and legal connection clauses should be applied to carry out qualitative and quantitative punishment; if there is any Those who violate the discipline of using "small treasury" funds, if clearly stipulated, should be investigated for corresponding disciplinary responsibilities according to the specific violations. At the same time, they should be distinguished from the corrupt behavior of using stolen money to set up "small treasury" to avoid different subjective purposes. Penalties shall be imposed;
The money in the "small treasury" belongs to public funds and should be determined as the crime of corruption, misappropriation of public funds or the crime of privately dividing state-owned assets according to changes in the elements of the crime; at the same time, the special funds collected will be used Improper use may result in significant losses of state-owned funds and may constitute the crime of abuse of power.