Lawyer

"The presiding judge and judges: We believe that...the facts found in the first instance are clear, the evidence is indeed sufficient, the court of the first instance has accurately characterized the behavior of the appellant in this case, and the behavior of the appellant constitutes a crime of corruption. Please dismiss the appellant's appeal according to law. It's over." The male prosecutor commented.

"The prosecutor can respond to the defense opinion of the defender." The presiding judge was performing his duties.

"Okay, presiding judge, regarding the defender's defense, we mainly express the following points:
We believe that the subsidy funds for the national home appliances going to the countryside are state-owned property. The appellant Lu Wei was entrusted by the state agency to manage the state-owned property. The company did his best, but he used the convenience of his position to defraud the state-owned property. The behavior of the appellant Lu Wei has constituted a Embezzlement.complete. ’ the inspector responded.

The auditorium was full of people, except for Lu Wei's family members, many people came to listen on purpose, because the city's procuratorate filed more than 20 lawsuits with the court for cases like Lu Wei's, all of which were related to Lu Wei's case The first-instance verdict handed down.

Among the appeal cases, Lu Wei's case was the first to be held, which has a demonstration effect, so the family members of the persons involved are very concerned about the verdict of Lu Wei's case.

"Defenders can respond to the prosecutor's opinion." After the presiding judge's voice fell, everyone in the gallery looked at Cao Yongzheng and Yun Qiao.

"Based on the Prosecutor's defense and response, we issue the following defense:
Although in accordance with the relevant regulations of the Provincial People's Government Office, the outlets participating in the sale of home appliances to the countryside should sign a power of attorney with the county and township financial departments, but signing such a power of attorney does not mean that each sales outlet is entrusted by the local financial department The specific reasons for managing state-owned property are as follows:

[-]. The above entrustment does not mean that the financial department entrusts the sales outlets with the administrative management power of reviewing and cashing the subsidy funds for home appliances going to the countryside.

First, the home appliance distribution outlets did not conduct audits and advance subsidy funds for home appliances going to the countryside in the name of the financial department, and the effects of their audits and advance payments had no impact on the audit by the financial department.

According to relevant regulations, after the township (town) finance office receives the settlement materials of the sales outlets, it still needs to further verify the relevant certificates, identities and purchase materials of the purchasing farmers, and review the advance payment of the sales outlets. Settlement of subsidy funds.

For materials that do not meet the conditions, the financial department shall not settle the settlement, and the losses incurred shall be borne by the sales outlets themselves.

This regulation shows that the review of sales outlets is only a formal review, and the subsidies it advances are only simulated payments, and the substantive review and distribution rights of the subsidy funds for home appliances to the countryside are still in the hands of the financial department.

Second, in practice, all localities have express regulations on the final review and confirmation of the subsidy funds for home appliances going to the countryside.For example, the city clearly stipulates that the final review authority lies with the county finance department.

It can be seen that although the state has delegated pre-review to home appliance sales outlets, the final review and confirmation right has not been delegated.

Second, if it is considered that the home appliance seller is a person who is "entrusted to manage and operate state-owned property", it will also cause confusion in the identification of its identity.

According to the provisions of relevant documents, home appliance sellers not only sign a power of attorney with the financial department, but also sign a "Power of Attorney for Applying for Subsidy Funds for Home Appliances Going to the Countryside Subsidy Subsidies" with farmers when distributing subsidy funds. Those who have received the subsidy funds from the sales outlets first, and now entrust the sales outlets to go to the financial department to handle the declaration and collection of the subsidy funds for home appliances to the countryside.

Judging from the fact that home appliance sellers are entrusted by both the financial department and farmers and consumers, it also shows that the home appliance sales outlets are not those who are entrusted by state agencies to manage and operate state-owned properties.

To sum up, Lu Wei, as a home appliance dealer, is neither a national employee nor a person entrusted by a state agency to manage state-owned property. He does not have the subject identity requirements to constitute a crime of corruption.complete. "Cao Yongzheng responded.

"Does the prosecutor need to continue to respond to the defense opinion of the defender?" asked the presiding judge.

"We need to continue to respond." The prosecutor continued: "As for the defender's response and defense, we believe that the nature of the appellant Lu Wei's agency review and advance payment of subsidy funds for home appliances to the countryside is an official act or a The appellant just took advantage of the convenience of this position to embezzle the relevant funds.”

"Does the defender need to continue to respond to the prosecutor's opinion?" asked the presiding judge.

"Yes, we need a response." Cao Yongzheng looked at Yunqiao after finishing speaking.

Yun Qiao had signaled him just now, and this time it was up to her to respond.

"In response to the prosecutor's defense opinions and responses, we believe that what Lu Wei engaged in was a labor act, not an official or official act.

The "National Court Trial of Economic Crime Cases Symposium Minutes" mentioned by the defender has relatively clear regulations on the understanding of "doing official business".

According to the stipulations of the minutes, 'engagement in public affairs refers to the performance of organization, leadership, supervision, management and other duties on behalf of state organs, state-owned companies, enterprises, public institutions, and people's organizations. '

'Public affairs are mainly manifested as public affairs related to powers and duties of supervising and managing state-owned property.For example, the staff of state organs perform their duties in accordance with the law, and the directors, managers, supervisors, accountants, cashiers, etc. of state-owned companies manage and supervise state-owned property and other activities, which are engaged in public affairs.Those labor activities and technical service jobs that do not have the content of authority, such as salespersons, conductors, etc., are generally not considered to be public affairs.

In this case, the review conducted by Luwei's home appliance sales outlets was only a formal review.Moreover, this kind of review is more of a function of collecting and summarizing materials, and its behavior of paying in advance and then receiving funds is similar to a kind of handling, without authority or job content.This auditing behavior is essentially a simple labor service activity, which does not have the nature of managing state-owned property.

After being entrusted by the financial department to conduct a formal review and advance subsidy funds, the sales outlets have also obtained the entrustment of farmers to apply for state subsidy funds from the financial department. The reason for this design is to simplify the process to the greatest extent and facilitate farmers, not to Necessary for the exercise of administrative powers.

It can be seen from this that Lu Wei took advantage of his convenience in labor services to obtain subsidies, which was the convenience of handling the transfer of subsidy funds. It did not have the content of management and operation, so it did not belong to the convenience of his position.

To sum up, although the defendant Lu Wei was entrusted by the financial department to review the identity information and purchase materials of the farmers, and advanced the subsidy funds to the farmers who met the purchase conditions when the farmers purchased home appliances to the countryside, but it was not based on the financial department. Entrust management and operation of state-owned property.

In the process of selling home appliances to the countryside, Lu Wei used illegal possession as a purpose to falsely claim the national subsidy funds for home appliances to the countryside, and his behavior conformed to the constitutional characteristics of the crime of fraud.His behavior does not constitute a crime of corruption, over. " Yun Qiao said.

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