Lawyer

Chapter 778 Embezzlement VS Position Embezzlement

"Her reason is that the so-called enterprise refers to an economic organization established in accordance with the law for the purpose of making profits and engaging in commodity production, operation or social services. If an enterprise is used for operation and management, the number of employees is relatively large, and it has all the characteristics of an enterprise, so it should be regarded as an enterprise.

Lawyer Zhou expanded the scope of "other units" stipulated in the first paragraph of Article 271 of the "Criminal Law", understanding that it can include individual industrial and commercial households like the machine processing factory in this case. " Du Yong said.

"Well, my opinion is the same as yours. This case should be classified as a crime of embezzlement." After more than 20 minutes, Fang Yi put down the case file and thought for a while.

"Can you explain to me, I still don't think clearly in some places." Du Yong humbly asked for advice.

"My understanding is this. According to the first paragraph of Article 271 of the "Criminal Law", the crime of occupational embezzlement refers to the personnel of a company, enterprise or other unit taking advantage of their position to illegally occupy the property of the unit as their own. larger behavior.

It can be seen from this that the subject of the crime of embezzlement should be the personnel of the company, enterprise or other units.In my opinion, individual industrial and commercial households are regulated by the "General Principles of Civil Law" (now replaced by the "Civil Code"). They belong to personal investment and operation, and they are special civil subjects who bear responsibility with personal property, not the subject of the crime of occupational embezzlement.The reason is:

First, an individual industrial and commercial household is different from the sole proprietorship mentioned in the "Sole Proprietorship Law", and it does not belong to an enterprise.

Second, individual industrial and commercial households are different from natural persons in terms of civil law. Their most prominent feature is the investor. Individual industrial and commercial households can be invested and operated by citizens or family members.

If it is an individual investment operation, the individual industrial and commercial household should be regarded as an individual in the sense of criminal law; if it is a family investment operation, it cannot be completely regarded as a unit in the sense of criminal law.

Third, a unit in the sense of the criminal law must be a social organization established in accordance with the law, with certain funds and property, and relatively independent (independent assets, independent business, independent personnel, independent finance, independent institutions).

Although an individual industrial and commercial household is also a civil subject, it has all the characteristics of a natural person and does not have the organizational characteristics of a unit.

Therefore, in the sense of criminal law, individual industrial and commercial households are substantial individuals, not enterprises or units.Therefore, employees, helpers, and apprentices (no matter how they are called) hired by individual industrial and commercial households cannot become the subject of the crime of embezzlement.

Although the victim's machine processing factory in this case is relatively large in scale and its management method is similar to that of an enterprise, it is still an individual industrial and commercial household and is still an individual in the legal sense.

Therefore, the driver employed by the processing plant is not the subject of the crime of occupational embezzlement, and his embezzlement of the factory's property by taking advantage of his position does not constitute the crime of occupational embezzlement. "Fang Yi explained.

"Oh, I'm much more transparent when you say that." Du Yong nodded.

"In this case, the defendant Niu Shenyi did not use the method of secret theft to take property under the possession of others as his own, but the essence of his behavior was to illegally take the property that he temporarily kept for himself and refused to return it.

Defendant Niu Shenyi, as a driver hired by an individual industrial and commercial machine processing factory, was entrusted to transport the raw materials and products of the machine processing factory. This employment-entrustment relationship made the two parties form a substantive custody relationship for the delivered goods. .

In other words, the defendant, Niu Shenyi, as the driver delivering goods for individual industrial and commercial households, had the obligation to keep the goods on his car, but he illegally took possession of other people's property and refused to return or hand it over. It infringes the property ownership of the machining factory, so I think its behavior constitutes a crime of embezzlement. "Fang Yi continued to explain.

Sending the Buddha to the west, since analyzing the case for the team members, it must be thoroughly analyzed, and you can't stop talking halfway, which is not conducive to the improvement of the professional level of the team members.

The professional strength of a team is not determined by the person with the highest professional level, the person with the lowest professional level will lower the level of the entire team.Therefore, if Fang Yi wants to improve the professional level of the team and build a reputation, he must not hide his secrets.

The embezzlement case is a private prosecution case directly accepted by the people's court, so the private prosecutor in this case is a machining factory. Although Du Yong also thinks that the defendant in this case should constitute the crime of embezzlement, he has not been transparent, so he came to Fang Yi for advice. .

Half a month later, the court's judgment once again confirmed Fang Yi's point of view.

The court held that the defendant Niu Shenyi illegally took possession of the private prosecutor's property worth 12 yuan in custody on his behalf. The amount was relatively large and he refused to return it. His behavior constituted the crime of embezzlement.

In accordance with the provisions of the first paragraph of Article 2 and Article 60 of No.7 of the "Criminal Law", the judgment: the defendant Niu Shenyi committed the crime of embezzlement and was sentenced to one year in prison; [-] yuan of stolen money was returned to the private prosecutor.

Of course, this is all for later, and Du Yong didn't know it at this time.

"How's Meng Guangda doing now? Is he already busy with his feet and hitting the back of his head?" Fang Yi asked with a smile.

"Brother Da is very hardworking, no matter the big case or the small case, as long as it is assigned to him, he will take it if there is money to be made." Du Yong commented objectively.

"Well, there are only three of you lawyers in our team. I will try to distribute the cases as evenly as possible. Don't worry, if there is fat work, I won't hold on to it. As long as you are willing to do it, everyone will earn something." Fang Yi smiled.

"Don't worry, we will work hard without your telling," Du Yong replied.

No one is stupid to be a lawyer. If the boss has selfish intentions and gives all the fat work to one person, or insists on holding on to it, other lawyers will soon know that it won’t take long for the team to be dissatisfied. no.

Fang Yi is fairly fair on this point. First of all, he will not cut down fat jobs privately (his goal is to build a team, not just make money by himself), and secondly, he will not favor a certain lawyer. He formed a clique, so everyone believed in him.

Of course, in Du Yong's view, it may be that the team is small, and Boss Fang doesn't need to do this. In the future, the team will develop and there will be more lawyers. , at least for now everyone is quite satisfied.

Soon Shen Mingyuan's money laundering case opened.Because the evidence provided by the public prosecutor was very solid, Fang Yi could only plead a minor crime. The prosecutor suggested that the court should sentence Shen Mingyuan to five years in prison for money laundering.

Fang Yi believed that Shen Mingyuan constituted the crime of money laundering, but he played an auxiliary role in the joint crime and was an accomplice. He should be given a lighter punishment in accordance with the law. He suggested that the court impose a fixed-term imprisonment of six months on him.

After the trial, the presiding judge announced the verdict in court.

The court held that the defendant, Shen Mingyuan, was instigated by others, and in order to obtain illegal benefits, knowing that it was the illegal income of other people's smuggling crimes, he still collaborated with others to cover up and hide the illegal nature and source of the illegal income by investing the smuggled funds in business operations. The behavior has hindered the financial management order of our country and has constituted the crime of money laundering.

The defendant, Shen Mingyuan, played an auxiliary role in the joint crime and was an accomplice, and should be given a lighter punishment according to law.In accordance with Article 191, Item (20) and No. [-], Article [-] of the Criminal Law of the People's Republic of China, the judgment:

32. Defendant Shen Mingyuan committed the crime of money laundering and was sentenced to one year and six months in prison and a fine of RMB [-];
[-]. Confiscate defendant Shen Mingyuan's illegally obtained BMW car.

After the judgment of the first instance was pronounced, the defendant did not appeal, nor did the public prosecution organ protest, and the judgment became legally effective.Shen Mingyuan's case was thus concluded.

(End of this chapter)