The Criminal Judgment of the People's Court of Longwan District, Wenzhou City, Zhejiang Province on the crime of embezzlement by Zhang
source：Longwan District People's Court
author：Longwan District People's Court
release time：2017-05-01
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Criminal judgment of the Longwan District People's Court of Wenzhou City, Zhejiang Province, on the crime of embezzlement of Zhang's position
(2016) Zhejiang 0303 Xingchu No. 915
Defendant Zhang Mou, male, born on November 27, 1976, Han ethnicity, initial Chinese degree, formerly a fresh purchaser of Zhejiang Renben Supermarket Co., Ltd., household registration location: Sheqi County, Henan Province. He was criminally detained on 1 December 2015 on suspicion of misappropriation of office and arrested on 7 January 2016.
Entrusted defender Peng Mou, a lawyer at Zhejiang Guangzheng Da Law Firm.
Defendant Zhang Mouzhi, male, born on October 10, 1970, Han ethnicity, initial Chinese degree, business, household registration location: Penglai City, Shandong Province. He was criminally detained on 20 January 2016 on suspicion of bribery of non-State workers, released on guarantee pending further investigation on 26 February 2016, and arrested on 1 March 2016 for embezzlement of office.
Retained defender Yang Mou, a lawyer at Hunan Junfang Law Firm.
On June 30, 2016, the Wenzhou Longwan District People's Procuratorate filed a public indictment with the Wenlong Procuratorate Criminal Prosecution [2016] No. 966 and the Wenlong Procuratorate Public Prosecution [2016] No. 9 Additional Indictment Decision, accusing defendants Zhang X and Zhang X Zhi of committing the crime of usurpation of office. On July 1 of the same year, the court filed the case and formed a collegial panel in accordance with law, and heard the case in open court. The Wenzhou Longwan District People's Procuratorate appointed acting procurator Yan Feiluo to appear in court to support the public prosecution, and defendants Zhang X and Zhang X Zhi and defenders Peng Xiaohua and Yang Zhenzhong attended the court to participate in the proceedings. During this period, the public prosecution organs will conduct a supplementary investigation. The trial is now closed.
The Wenzhou Longwan District People's Procuratorate alleged that between 2011 and 2015, defendant Zhang Mouzhi was entrusted by Zhejiang Renben Supermarket Co., Ltd. (hereinafter referred to as Ren Company) to acquire apples on behalf of the Company during that period; defendant Zhang Mouzhi was a fresh purchaser of the Company, responsible for supervising the quality and quantity of Apples purchased by Zhang Mouzhi, and entering the price and quantity of Apples purchased by Zhang Mouzhi into the accounts and reporting them to the Company. During this period, Zhang X and Zhang X Zhi premeditated and took advantage of the above positions to embezzle the company's money by falsely declaring the price of the apple they had purchased. After investigation, Zhang X and Zhang X Zhi embezzled a total of 160,000 yuan of the company's money through the above methods.
During 2013, defendant Zhang Mouzhi was entrusted by the Company to acquire Apple on behalf of the Company during this period. Gu Mou (handled in a separate case) is a fresh purchaser of the Company, responsible for supervising the quality and quantity of Apples acquired by Zhang Mouzhi, and entering the price and quantity of Apples purchased by Zhang Mouzhi into the accounts and reporting them to the Company. During the period, Zhang Mouzhi and Gu Mou, through premeditation, took advantage of the above positions to embezzle a total of 30,000 yuan of the company's money by falsely announcing the price of the apple.
For the above allegations, the public prosecution provided corresponding evidence. The public prosecution organ found that the acts of defendants Zhang X and Zhang X Zhi had constituted the crime of usurpation of office, which was a relatively large amount, and requested punishment in accordance with the provisions of the first paragraph of article 271 and the first paragraph of article 25 of the Criminal Law of the People's Republic of China. The public prosecution organ recommended that defendant Zhang be sentenced to a fixed-term imprisonment of one year and six months, and that defendant Zhang be sentenced within the range of 10 months to one year and four months of imprisonment.
Defendant Zhang had no objection to the facts of the allegations. His defender argued that the 30,000 yuan received on January 24, 2013 should not be recognized as Zhang's illegal income; on December 17, 2014, Chi transferred 130,000 yuan to Zhang, of which 50,000 yuan was not illegal. Zhang X's criminal circumstances are relatively minor, and the intention to commit the crime was raised by Zhang X; Zhang X is a first-time offender, and his family has already returned 130,000 yuan of stolen goods on his behalf; Zhang X's confession attitude is better after he is arrested, and he can truthfully confess his illegal behavior.
Defendant Zhang Mouzhi argued: In Section 1, he quoted the actual price of the acquisition to Zhang X, and Zhang X falsely quoted the price that he did not know, but he only obtained the commission in accordance with the provisions of the purchase agreement, and he did not collect money. In section 2, his money was sent to Gu Mou, and Gu Mou said that it was a subsidy for a business trip to Shandong. His defender pointed out that the acts of defendant Zhang Mouzhi and his co-defendants objectively constituted occupation of office, but the subjective purpose was completely different, the purpose of the co-defendant was illegal possession, and Zhang Mouzhi's subjective purpose was to be able to do more business with the company and coordinate to get the payment as soon as possible, and it was doubtful whether Zhang Mouzhi had the purpose of illegal encroachment. On October 26, 2015, Zhang Mouzhi voluntarily confessed to the public security organs the facts of the crime of helping co-offenders to encroach on their positions, which should be found to have surrendered voluntarily. The intention of the criminal in this case was proposed by the co-offender, the specific apple price increase was determined by the co-offender, and the declaration after the price increase was also declared by the co-offender in the company system, and the falsely reported money was taken by the co-offender, and Zhang Mouzhi had no benefit. Zhang Mouzhi confessed; in this case, there were circumstances of returning stolen goods; it is recommended that the court give defendant Zhang Mouzhi a light punishment and sentence him to fixed-term imprisonment of not more than one year.
After trial, it was ascertained that between 2011 and 2015, defendant Zhang Mouzhi was entrusted by Zhejiang Renben Supermarket Co., Ltd. (hereinafter referred to as Ren Company) to acquire apples on behalf of the Company during that period; defendant Zhang Mouzhi was a fresh purchaser of the Company, responsible for supervising the quality and quantity of Apples purchased by Zhang Mouzhi, and entering the price and quantity of Apples purchased by Zhang Mouzhi into the accounts and reporting them to the Company. During this period, Zhang X and Zhang X Zhi premeditated and took advantage of the above positions to embezzle the company's money by falsely declaring the price of the apple they had purchased. After investigation, Zhang X and Zhang X Zhi embezzled a total of 160,000 yuan of the company's money through the above methods.
During 2013, defendant Zhang Mouzhi was entrusted by the Company to acquire Apple on behalf of the Company during this period. Gu Mou (handled in a separate case) is a fresh purchaser of the Company, responsible for supervising the quality and quantity of Apples acquired by Zhang Mouzhi, and entering the price and quantity of Apples purchased by Zhang Mouzhi into the accounts and reporting them to the Company. During the period, Zhang Mouzhi and Gu Mou, through premeditation, took advantage of the above positions to embezzle a total of 30,000 yuan of the company's money by falsely announcing the price of the apple.
On December 1, 2015, defendant Zhang was arrested and brought to justice by the public security organs. On January 20, 2016, defendant Zhang Mouzhi was arrested and brought to justice by the public security organs. It was also confirmed that on January 6, 2016, Zhang's family had withdrawn 130,000 yuan of stolen money from the company on behalf of the company.
This court confirms the above facts by evidence12 submitted by the defender and the following evidence submitted by the public prosecution organ and cross-examined and authenticated by the court:
1. Defendant Zhang's confession on December 1, 2015, confessing that Zhang had borrowed RMB50,000 from him in November 2011 and RMB60,000 from him in March 2013.
Defendant Zhang Mouzhi's subsequent confession during the investigation stage confessed that Zhang Mouzhi proposed to buy apples plus 2 cents per kilogram and give him a share of 1 cent, which he promised, and he entered the system according to the price opened by Zhang Mouzhi, and then settled with the company, so that Zhang Mouzhi actually gave him 80,000 yuan; The 50,000 yuan that Zhang Mouzhi repaid was lent to Zhang Mouzhi in cash in Guangzhou, and the 30,000 yuan transferred to Qiu's account in January 2013 was also a loan repaid by Zhang Mouzhi.
2. Defendant Zhang X Zhi confessed in the investigation stage that he had been buying apples in Penglai for the company since 2011, the apples collected in 2011 did not give Zhang and Gu money, and when he was ready to start collecting apples around October 2012, the company sent Zhang, Gu and Zheng to Penglai to see the price and quality of the apples, and when eating, Gu asked him to collect apples from the fruit farmers according to the price and quantity he said, and after the harvest, he reported the price to him, and he reported it to the company, so that he could not report it to the company himself Then he had to add 2 cents per kilogram of apples, and the extra money was given to him, and zhang also said the same thing to him; he gave the company apples to the company, in addition to the money paid to the fruit farmers, the company paid him 1.5 cents to 2 cents of agency fees per kilogram, in addition, the money that the company gave him was attributed to Zhang X and Gu X; he transferred two sums of money to Zhang X, in December 2014, his ex-wife Chi transferred 130,000 yuan to Zhang's designated account, and at the beginning of 2013, he transferred 30,000 yuan to Zhang's designated account; he transferred 1 money to Gu. In November 2013, his deposit of 30,000 yuan was given to Gu's account. He gave Zhang 160,000 yuan and Gu 30,000 yuan, and he had no other economic contacts with them. If they do not cooperate with them, the payment can not be asked in time, and how many quantities of apples to purchase and the quality of apples are their final say, in order to do business with the company had to cooperate.
3. The testimony of witness Gu Mou confirmed that the company sent him to supervise Zhang Mouzhi's acquisition of apples, and Zhang Mouzhi told him to get some money from it, let him talk to the company, the quality was relaxed, and let him report to the company according to the price reported by Zhang Mouzhi; Zhang Mouzhi remitted 30,000 yuan to his wife Wang Xuping's account in June 2014.
4, the testimony of the witness Chi, confirmed that his ex-husband Zhang Mouzhi gave people the company to collect apples, Zhang Mou and Gu mou were the salesmen of the company, Zhang Mouzhi quoted the price of the apple to them, they added 0.2 yuan to the original price to the company, the company paid Zhang Mouzhi, Zhang Mouzhi and then called Zhang Mouzhi, Gu Mou; he called Zhang Mou for 130,000 yuan, before the accident Zhang Mou called him to say that the company was checking on him, let him say that the matter of paying Zhang Mou was to borrow his money, and the payment was for repayment, and he did not agree. He has called 30,000 yuan to Gu Mou, and has also played 20,000 yuan, and the specific amount is not clear. Zhang Mou and Gu Mou were sent to collect apples at different times, and whoever was responsible for collecting apples would give them kickbacks.
5. The testimony of witness Qiu X confirmed that he had obtained a card at the Guangzhou Chatou Branch of the Agricultural Bank of China, handed it to Zhang for use, and received 30,000 yuan on January 24, 2013.
5. The testimony of witness Zhu Mou confirmed that in order to facilitate the purchase of apples, the company entrusted Zhang Mouzhi to purchase apples and pay labor fees according to the pound, and the purchasers Zhang mou and Gu mou were responsible for supervising the quality and price of the purchased apples; according to the account of Zhang Mouzhi and his wife, Zhang Mouzhi successively transferred 130,000 yuan to Zhang Mouzhi's bank, paid 70,000 yuan in cash, and transferred 30,000 yuan in bank; Zhang Mouzhi deposited 90,000 yuan in cash to Gu.
6. The testimony of witness Zheng X confirmed that he was the cashier of the fresh department of the company, responsible for paying the purchase price and bookkeeping; the company purchased fruit, first by the fresh purchaser to understand the market price of the fruit that year, after reporting to the company to determine a price range, the actual purchase price was issued by the fresh purchaser to it, and its summary was issued to the company's finance and leadership; in 2014, Zhang Mouzhi purchased apples on behalf of the company, and the company sent him and Zhang Mouzhi to Shandong to reconcile with Zhang Mouzhi, and Zhang Mouzhi sent him a gold necklace. I hope that it can quickly make the purchase payment, and it will hand over the gold necklace to the company.
7. Witness Chen's testimony confirmed that Zhang X and Gu X were all fresh purchasers of the company, the company found an agent to purchase fruit from the fruit farmers, the agent was determined by him to go to the fruit production area, the company paid the agent labor fee according to the amount of fruit procurement, and the company sent fresh purchasers to supervise the quality and price of the fruit purchased by the agents; Zhang X, Gu X and other fresh purchasers supervised on the spot, and reported the purchase quantity and price to the fresh ministry finance through the company's OA system, after that, According to the actual warehouse receipt and the purchase quantity and price reported by the fresh purchaser to the company, the unified and agency to settle the purchase payment, the purchase money is paid to the agent, the company has no way to check the actual purchase price with the fruit farmers; the procurement contract is signed by the fresh purchaser on behalf of the company and the agent.
8. The testimony of witness Li Confirmed that the Company has paid 3.51 million yuan for apple goods in 2014 to Zhang Mouzhi in accordance with the collection agreement.
9. Agricultural product purchase agreement, cold storage storage contract, bank remittance record.
10. Bank transfer records, confirming that Chi transferred 130,000 yuan to Zhang, Zhang's bank card transferred 30,000 yuan; Qiu's agricultural bank account transferred 30,000 yuan.
11. Labor contract, employee resume, business license of the company, proof that Zhang X and Gu X are employees of the company.
12. The receipt of the payment issued by the company and the explanation issued by the company confirm that Zhang's family has refunded 130,000 yuan to the company on behalf of the company.
13. Explanation of the circumstances in which defendants Zhang X and Zhang X Zhi were passive in the case issued by the public security organs.
14. Identification of defendants Zhang X and Zhang X Zhi.
Regarding defendant Zhang's defender, he argued that the 30,000 yuan received on January 24, 2013 should not be recognized as Zhang's illegal income; on December 17, 2014, Chi transferred 130,000 yuan to Zhang, of which 50,000 yuan was not illegal. After investigation, it was found that Zhang only confessed to collecting the difference of 80,000 yuan from defendant Zhang Mouzhi during the investigation stage, and then confessed that Zhang Mouzhi repaid his loan of 50,000 yuan and 30,000 yuan, and confessed at the trial that his position was embezzled by 160,000 yuan, and his own confession was inconsistent and had a low degree of credibility; Moreover, his confession of 50,000 yuan and 30,000 yuan was Zhang Mouzhi's repayment, but he did not provide relevant evidence such as IOUs and remittance vouchers, which was low in credibility. Defendant Zhang Mouzhi confessed that the 160,000 yuan he sent to Zhang was the apple price difference, and he had no other economic connection with Zhang; Zhang's confession could also be corroborated by bank remittance records; the testimony of witness Chi confirmed that he had called Zhang for 130,000 yuan, and before the accident, Zhang called him to ask him to help cover up in the name of borrowing. In summary, the alleged criminal facts are sufficient to be determined according to the above evidence, so the above opinions are not accepted.
Defendant Zhang's defender proposed that Zhang's intention to commit the crime was raised by Zhang Mouzhi. After investigation, it is found that, according to the above evidence, the confession of defendant Zhang X and witness Gu X is the proposal of Zhang X, and the defendant Zhang X and witness Chi X talk about the proposal of Zhang X, Gu X, etc. Although the specific process of criminal premeditation cannot be directly confirmed according to the existing evidence, from the perspective of the facts ascertained and the specific flow of the stolen money, the proceeds of the illegal income in this case belong to Zhang X, Gu X, and others, and Zhang X Zhi only obtained a trading opportunity, so the defender's intention to commit this case was raised by Zhang X Zhi, which is not in line with common sense and is not accepted.
Defendant Zhang's defender proposed that Zhang had a better attitude of admitting guilt after his return to the case, and could truthfully confess his illegal conduct. After investigation, it was found that Zhang Mou failed to truthfully confess the main facts of his crime at the investigation stage and the review and prosecution stage after his arrest, and could not be found to have a good attitude of admitting guilt, but he was still able to voluntarily admit guilt during the trial and was given a lenient punishment at his discretion. The above opinions are not adopted. Probation opinions are not adopted. Other comments shall be adopted.
Defendant Zhang Mouzhi argued that Zhang Mouzhi falsely quoted the price to the Company as he did not know. After investigation, it was found that Zhang Mouzhi repeatedly and stably confessed that in order to obtain the opportunity to do business with the company, he helped increase the price at the request of Zhang X and others, and the defendant Zhang X and witness Gu X also confirmed that Zhang X Zhi knew about the price increase. Defendant Zhang Mouzhi argued that the money was a subsidy for Gu's business trip. After investigation, it was found that Zhang Mouzhi repeatedly and stably confessed that the money was the apple price difference during the investigation stage, and Gu also confessed to it. The above opinions, which are inconsistent with the facts ascertained, are not accepted.
Defendant Zhang Mouzhi's defender argued that the conduct of Zhang Mouzhi and his co-defendants objectively constituted occupation of office, but the subjective purpose was to obtain trading opportunities, and it was doubtful whether it had the purpose of illegal encroachment. After investigation, it is found that, according to the theory of joint crime, the above opinions are not adopted and will not be repeated. The defender submitted that Zhang Mouzhi had surrendered himself or confessed, but because Zhang Mouzhi refused to admit guilt during the trial, he was not adopted. The other opinions raised by the defender are in accordance with the facts of the case and the provisions of the law, and are adopted.
This court held that the defendants Zhang X and Zhang X Zhi ganged up to take advantage of Zhang X's position and adopted the method of falsely quoting prices to illegally occupy the property of their own units for themselves, and the amount was relatively large, and their acts had constituted the crime of embezzlement of office. The charges charged by the public prosecution organs are established and supported by this court. Defendant Zhang's family has already returned most of the stolen goods on their behalf, and a lenient punishment is given at their discretion. Sentencing recommendations submitted by public prosecution organs conform to the principle of proportionality of criminal responsibility and punishment in the Criminal Law, and are to be adopted. On the basis of the facts, nature, circumstances, degree of harm to society and expression of repentance of the defendant's crime, the judgment is as follows in accordance with the provisions of article 271, paragraph 1, article 25, paragraph 1, article 12, and article 64 of the Criminal Law of the People's Republic of China:
1. Defendant Zhang X commits the crime of usurpation of office and is sentenced to fixed-term imprisonment of one year and one month.
(The sentence is calculated from the date of execution of the judgment.) Where the sentence is pre-emptively detained, one day of detention is offset by one day of the sentence, that is, from December 1, 2015 to December 31, 2016. )
2. Defendant Zhang Mouzhi committed the crime of encroachment on his position and was sentenced to 11 months' imprisonment.
(The sentence is calculated from the date of execution of the judgment.) Where the sentence is pre-emptively detained, one day of detention is offset by one day of the sentence, that is, from January 20, 2016 to December 22, 2016. )
3. Order defendants Zhang X and Zhang X Zhi to continue to return the remaining stolen money of RMB30,000 and return it to the victim's unit, Zhejiang Renben Supermarket Co., Ltd.; order defendant Zhang X Zhi to return the stolen money of RMB 30,000 and return it to the victim's unit, Zhejiang Renben Supermarket Co., Ltd.
If you are not satisfied with this judgment, you may appeal through this court or directly to the Wenzhou Intermediate People's Court within 10 days of receiving the judgment. Where an appeal is made in writing, one original and two copies of the appeal shall be submitted.
Judge Yu Xing
People's Assessor Zhang Huiqiao
People's Assessor Yu Yin
December 16, 2016
Assistant Judge Chen Lijie
Acting clerk Chen Gaoxiang
附：本判决援引的法律条文
《中华人民共和国刑法》
Article 271:[Crimes of Misappropriation of Office; Crimes of Embezzlement] A personnel of a company, enterprise or other unit who, by taking advantage of his position, illegally appropriates the property of his or her own unit for himself, and the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention;
Whoever engages in public service in a State-owned company, enterprise or other State-owned unit and a person appointed by a State-owned company, enterprise or other State-owned unit to engage in public service in a non-State-owned company, enterprise or other unit commits the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law.
Article 25: [Concept of Joint Crime] Joint crime refers to two or more persons committing a joint intentional crime.
If two or more persons commit a crime of joint negligence, they shall not be punished as a joint crime; if they should bear criminal responsibility, they shall be punished separately according to the crime they have committed.
Article 12: [Retroactive Force] If the law at that time does not consider a crime to be committed before the implementation of this Law after the founding of the People's Republic of China, the law at that time shall apply; If the law at that time considers it to be a crime, if it should be prosecuted in accordance with the provisions of chapter IV, section 8 of the general provisions of this Law, criminal responsibility shall be pursued in accordance with the law at that time, but if this Law does not consider it to be a crime or the sentence is relatively light, this Law shall apply.
Article 64:[Handling of Criminal Articles] All property illegally obtained by criminals shall be recovered or ordered to be returned; the lawful property of victims shall be promptly returned; contraband and personal property used in the crime shall be confiscated. Confiscated property and fines shall be handed over to the State Treasury and shall not be misappropriated or disposed of by oneself.
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