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以案明纪释法丨国企工作人员侵吞本单位财物行为性质分析
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-08-27 01:34
【内容提要】 2016年11月,张某利用职务便利,先以A公司名义与某新材料公司谈好PAC采购数量(2800吨)和价格 (当时市场价2500元/吨),后暗示该新材料公司按照商定好的价格和数量与C公司签订采购合同。该新 材料公司同意并与C公司签订了合同。同期,张某利用职务便利,使得C公司以2000元/吨的价格从A公 司采购2800吨PAC,A公司制作出库单、出具货权转让手续,C公司将货款支付给A公司并签署收货单, 但货物仍由A公司仓库储存。2017年2月,经B公司党政联席会讨论决定,任命张某担任A公司市场部经 理,全面负责公司PAC等精细化工品的销售业务。2017年4月,C公司将从A公司采购的2800吨PAC交付 给该新材料公司,张某与李某获利140万元,张某分得110万元。 2017年5月至2022年4月,张某利用担任A公司市场部经理的职务便利,继续伙同李某通过前述方式共计 获利350万元,张某分得280万元。经查,C公司系空壳公司,除介入A公司与其下游客户的PAC交易 外,没有开展其他经营活动。 【分歧意见】 根据刑法第二百七十一条规定,公司、企业或者其他单位的工作人员,利用职务上的便利,将本单位财 物非法占 ...
村干部套取帮扶资金的行为性质分析
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-08-13 00:04
根据《全国人民代表大会常务委员会关于〈中华人民共和国刑法〉第九十三条第二款的解释》(以下简 称《解释》),村民委员会等村基层组织人员协助人民政府从事有关行政管理工作时,如救灾、抢险、 防汛、优抚、扶贫、移民、救济款物的管理,社会捐助公益事业款物的管理等,属于刑法第九十三条第 二款规定的"其他依照法律从事公务的人员"。实践中,对于村干部协助跨行政区域的人民政府从事公务 时,其身份是否属于"其他依照法律从事公务的人员",存在不同认识。笔者结合具体案例进行分析。 许某某,中共党员,某县A镇B村党支部书记。2019年5月,某区C街道办事处按照上级安排结对帮扶B 村,主要帮扶B村发展壮大特色产业、改善基础设施条件等。2019年7月,B村村民委员会为解决村民生 产生活用水问题,向C街道办事处申请专项资金修建水池,C街道办事处经实地考察后,同意从本级财 政资金中列支30万元用于帮扶B村修建水池。C街道办事处考虑到B村不在其行政区域内,不便于直接实 施该项目,便委托B村村民委员会实施,由许某某牵头协调,C街道办事处负责验收,并按照项目实施 进度拨付资金。B村村民委员会在实施上述项目过程中,许某某采取虚开建材发票的方式,以项目 ...
要求管理服务对象向所在单位“捐赠”财物相关问题辨析
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-07-23 01:21
Core Points - The case involves a public institution (A unit) and a private company (B company), where the head of A unit, Shen, solicited a donation of 1 million yuan from Zhang, the actual controller of B company, to fund a research project [1][2] - The donation was used to gain favorable treatment in project bidding, with B company winning contracts worth over 20 million yuan as a result [1][2] - Different legal interpretations exist regarding the nature of the donation, with one view categorizing it as bribery and the other as a legitimate donation benefiting the unit [2][3] Summary by Sections - **Nature of the Donation**: The 1 million yuan donation from Zhang to A unit is characterized as a bribe rather than a legitimate donation, as it was not voluntary and aimed at securing improper benefits [3][4] - **Legal Implications**: Shen's actions are analyzed under the lens of bribery laws, with the consensus leaning towards classifying the donation as unit bribery, and Shen's subsequent actions as both unit bribery and personal embezzlement [2][5] - **Financial Misappropriation**: Shen misappropriated 150,000 yuan for personal use from the donation, which constitutes embezzlement under criminal law, highlighting the misuse of public funds [5][6]
集体私分国有参股公司资金如何定性
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-07-09 00:07
Core Viewpoint - The case discusses the misappropriation of state-owned assets by a management team in a state-owned joint venture, highlighting the legal interpretations of their actions and the appropriate charges against them [1][2][6]. Group 1: Case Background - Chen, appointed by the A City Transportation Committee, served as the Party Secretary and Chairman of the Supervisory Board of Company B, which is a limited liability company with 50% state-owned and 50% private capital [1]. - Between 2012 and 2014, Chen and other executives illegally distributed a total of over 7.98 million yuan under the guise of "performance rewards" to management personnel, with Chen personally receiving over 940,000 yuan [1]. Group 2: Legal Interpretations - Three differing legal opinions exist regarding the classification of Chen's actions: 1. Some argue it constitutes joint embezzlement due to the illegal appropriation of state funds [2]. 2. Others believe it amounts to the illegal distribution of state-owned assets [2]. 3. The prevailing view is that it constitutes abuse of power by state-owned enterprise personnel, as it resulted in significant losses to state interests [2][6]. Group 3: Legal Framework - The actions do not meet the criteria for embezzlement as defined by Article 382 of the Criminal Law, which pertains to individual actions rather than collective decisions made by a unit [3]. - The behavior also does not qualify as the illegal distribution of state-owned assets under Article 396, as Company B is a joint venture and not a wholly state-owned entity [4][5]. - Chen's actions are classified as abuse of power under Article 168, as he violated his duties and caused significant losses to state interests [6][7].
三堂会审丨违规经商办企业还是贪污
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-07-09 00:07
Core Viewpoint - The case revolves around the actions of Che, who used Company A's name to "invest" in Company B, ultimately obtaining over 4.15 million yuan in "dividends," raising questions about whether this constitutes a violation of business regulations or embezzlement [2][18]. Summary by Sections Basic Case Facts - Che joined the Communist Party in June 1994 and served as the chairman and general manager of Company A, a state-owned enterprise, until his retirement in October 2021 [3]. Embezzlement Details - In October 2013, Che arranged for an employee to register Company B under his name, with a registered capital of 1 million yuan, which was loaned from a state-owned small loan company [4]. - Company B was managed by Company A's asset management department and was used as a tool for external business operations [4][5]. - In 2014, Che manipulated the financing service contracts to benefit Company B, which he knew was profitable and low-risk, and decided to "invest" in Company B to extract its profits [5]. Financial Transactions and Control - From March to December 2015, Che facilitated the transfer of 50% of Company B's shares to Company A and its management team without any payment, maintaining control over the company [6]. - Between September 2016 and March 2017, Che received over 4.15 million yuan in dividends from Company B based on a 30% shareholding [6]. Investigation and Legal Proceedings - The investigation into Che's actions began on June 27, 2023, leading to his detention and subsequent legal actions, including a public prosecution for embezzlement [8][9][10]. - On January 11, 2024, the court sentenced Che to 11 years and 6 months in prison for embezzlement, along with a fine of 1.3 million yuan [11]. Company Nature and Legal Implications - There are differing opinions on whether Company B is a state-owned enterprise or a private company, but evidence suggests it is controlled by Company A, thus qualifying as a state-owned entity [13][14][17]. - Che's actions, including undervaluing Company B's shares and using its funds for personal gain, are classified as embezzlement under the law [22][25]. Conclusion on Che's Actions - Che's investment in Company B was deemed a means to unlawfully acquire state-owned assets, constituting embezzlement rather than a legitimate business activity [21][25].
以案明纪释法丨村干部在拆迁工作中侵占补偿款的行为性质分析
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-07-02 01:06
Group 1 - The core argument revolves around the classification of village cadres as state workers based on their engagement in public duties, particularly in the context of land expropriation and compensation [1][9] - Case one illustrates a scenario where village cadre A and official B conspired to fraudulently obtain over 5 million yuan in compensation by fabricating population and land area documents, raising questions about their legal accountability [2][4] - Case two involves cadre C, who improperly allocated compensation to individuals not entitled to it, resulting in over 5 million yuan in losses, highlighting the misuse of authority in local governance [3][5] Group 2 - There are differing opinions on the legal classification of the actions taken by cadres A and C, with one view suggesting they committed abuse of power, while another argues for the classification of their actions as embezzlement [4][14] - The distinction between public duties and village management is crucial in determining the legal status of village cadres, as their actions may fall under different legal frameworks depending on their engagement in governmental functions [7][9] - The analysis emphasizes that the nature of the funds involved—whether they are public or collective assets—plays a significant role in determining the applicable legal consequences for the actions of the village cadres [12][13]
单位受贿与受贿交织如何准确认定
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-06-18 00:16
Group 1 - The article discusses the legal distinctions and similarities between bribery and embezzlement in the context of a specific case involving a hospital department head and a drug dealer [1][3] - The case highlights the complexities of determining whether certain funds should be classified as unit bribery or personal embezzlement, particularly regarding the payment of 180,000 yuan for the head's daughter's salary and social insurance [2][4][6] - Different viewpoints exist on how to classify the 180,000 yuan payment, with one perspective arguing it should be considered as part of unit bribery, while another suggests it constitutes embezzlement due to the misappropriation of unit funds [3][5][7] Group 2 - The article emphasizes that for a crime to be classified as unit bribery, the funds must be controlled and owned by the unit, which was not the case in this instance [4][5] - It is argued that the 180,000 yuan payment does not qualify as embezzlement since the funds were never under the unit's control or ownership, thus not infringing on public property rights [6] - Ultimately, the article concludes that the 180,000 yuan should be classified as personal bribery for the department head, as the transaction was a result of a new agreement between him and the drug dealer [7]
三堂会审丨贪污伴随的滥用职权行为是否应单独评价
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-06-18 00:16
Core Points - The case involves three individuals (A, B, C) conspiring to falsely inflate seed procurement quantities, resulting in an overpayment of 120,000 yuan to Company C, which they later divided among themselves [5][9][10] - A, while serving as the head of the Agricultural Technology Promotion Station, engaged in corrupt practices, including embezzlement and bribery, totaling 2.08 million yuan in bribes and 460,000 yuan in collusion with another employee [6][12][14] - The investigation led to A being expelled from the party and public office, with subsequent criminal charges filed for embezzlement, bribery, and collusion [7][18][20] Summary by Sections Basic Case Facts - A was responsible for a seed procurement contract, where he, along with B and C, conspired to create a false procurement quantity, leading to an illegal return of 120,000 yuan [4][5] - A's actions included receiving bribes from multiple suppliers, totaling 2.08 million yuan over a decade [6][12] Investigation Process - The investigation began on September 25, 2023, with A being placed under detention, followed by disciplinary actions and criminal charges [7][19] - A was convicted on April 30, 2025, receiving a combined sentence of seven years in prison and a fine of 550,000 yuan [7][18] Legal Interpretations - The actions of A, B, and C were classified as joint embezzlement rather than bribery, as they involved the illegal appropriation of public funds [8][9] - The court determined that A and another employee, D, engaged in joint bribery, with A being the principal actor and D playing a secondary role [15][16]
以案明纪释法丨吸收客户资金不入帐罪与转化型贪污辨析
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-05-28 00:50
Core Viewpoint - The case involves the misappropriation of customer funds by a bank official, leading to a debate on whether the actions constitute the crime of embezzlement, misappropriation of public funds, or the crime of accepting customer funds without proper accounting [1][3][4]. Summary by Sections Basic Case Facts - Liu, a deputy branch manager of a state-owned commercial bank, and his wife, the actual controller of a private company, misappropriated over 10 million yuan from customers by falsely claiming high-interest deposit opportunities [2]. - Liu did not deposit the funds into the bank's official accounts but used them for his wife's company's operations, leading to a financial crisis and inability to repay the funds [2]. Divergent Opinions - Three opinions exist regarding Liu's actions: 1. Some argue he committed the crime of accepting customer funds without proper accounting due to the significant amount involved [3]. 2. Others believe he committed misappropriation of public funds since he intended to use the funds for business operations and misled customers into thinking their money was safely deposited [3]. 3. The third opinion asserts that Liu's actions constitute embezzlement, as he intended to illegally possess the funds after failing to repay them [4]. Analysis of Opinions - The analysis supports the view that Liu's actions should be classified as embezzlement, focusing on the nature of the funds, the intent to illegally possess them, and the transformation of intent from misappropriation to embezzlement [5][10][14]. - The funds involved are considered public funds, as they were not deposited into the bank's official accounts, despite customers believing they were [8][9]. Judgment of Intent - The determination of Liu's intent is crucial, as embezzlement requires a clear intention to illegally possess public funds, which is evident in Liu's actions of destroying deposit certificates and fleeing [10][12][13]. - Liu's behavior reflects a shift from initially misappropriating funds for business purposes to a clear intent to permanently deprive customers of their money [13][14]. Conclusion - Based on the principles of subjective and objective consistency, Liu's actions should be treated as embezzlement, as they represent a complete criminal act involving the misappropriation and subsequent illegal possession of public funds [14].
三堂会审丨帮亲属伪造职工身份参保骗取养老金如何定性
Zhong Yang Ji Wei Guo Jia Jian Wei Wang Zhan· 2025-05-21 00:00
Core Points - The case involves Lin, a former official, who used his position to facilitate his wife's early retirement and pension collection through fraudulent means [2][5][15] - Lin's actions have been classified as embezzlement and bribery, leading to his conviction and sentencing [8][12][18] Summary by Sections Basic Case Facts - Lin held multiple positions in B County, including Deputy Director of the Environmental Protection Bureau and Chairman of the Agricultural Development Company [3] - He engaged in a loan transaction with a contractor, resulting in a profit of 38.78 million yuan [3][4] Violations of Financial Laws - Lin was involved in creating a "slush fund" by fabricating labor contracts to siphon off 196,300 yuan [4][14] - He misappropriated funds for unauthorized employee bonuses and reimbursements [4][14] Embezzlement and Bribery - Lin's wife, Tao, sought to retire early by falsely claiming employment with the Agricultural Development Company, which Lin facilitated [5][15] - The company paid a total of 7,649.76 yuan for Tao's insurance, which was included in Lin's embezzlement total [6][18][20] - Lin received bribes totaling 1.245 million yuan from contractors during his tenure [6][8] Investigation and Legal Proceedings - The investigation began in March 2023, leading to Lin's detention and subsequent expulsion from the party and public office [7][8] - Lin was formally charged with embezzlement and bribery, resulting in a four-year prison sentence and a fine of 400,000 yuan [8][12] Legal Analysis - The classification of Lin's loan to the contractor as either a legitimate transaction or a form of bribery was debated, with the conclusion leaning towards it being a violation of ethical standards rather than outright bribery [10][12] - The fraudulent creation of labor contracts was analyzed under the lens of embezzlement, with Lin's intent to misappropriate public funds being a key factor [15][16][18]