Conviction of embezzlement crime

article 27 the crime of embezzlement, in which a large amount of property of others is illegally taken for himself, refuses to return it, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years and shall also be fined.

whoever illegally takes forgetting things or buried objects of others for himself and refuses to hand them over in a large amount shall be punished in accordance with the provisions of the preceding paragraph.

this crime can only be dealt with if it is told.

the crime of embezzlement refers to the act of illegally taking possession of other people's property or other people's forgetting things and buried objects for the purpose of illegal possession, and refusing to return or hand them over in a large amount. In judicial practice, we should pay attention to the following issues: 1? The object of this crime is limited to other people's property, other people's forgetting things or buried objects. Other people's property kept on behalf of others should be broadly understood, including other people's property that is actually held because of other people's entrusted custody, entrusted purchasing, consignment, transfer and collection without management, unjust enrichment, borrowing or leasing; Forgetting things refers to the property that the owner or holder of the property forgets to take away due to negligence, leaving a place temporarily out of control; Buried objects refer to the property buried underground by others. 2? The actor's act of encroaching on the above three objects is the key to this crime. The essence of embezzlement is to change legal possession into illegal possession. The establishment of embezzlement must meet two conditions at the same time: (1) legally holding other people's property is the premise of the establishment of embezzlement, and it is also the key to distinguish this crime from crimes such as theft and fraud. The specific manifestations of legal possession are: holding other people's property on the basis of entrusted custody, picking up other people's forgetting things, or accidentally digging up other people's buried objects. If the act of holding other people's property itself is illegal, it cannot constitute this crime; (2) Refusing to return or hand over other people's property is the core of embezzlement. Refusing to return or hand over the property refers to pretending to be the owner of the property, and taking other people's property, other people's forgetting things and buried objects as their own property, and disposing them without authorization, including using them for personal use, selling them, renting them out or giving them to others. If the actor returns or surrenders other people's property, it does not constitute this crime. 3? Subjectively, the actor must be intentional, that is, the actor knows that it is the property of others and illegally occupies it. In particular, it should be noted that the purpose of illegal possession of other people's property in this crime is only after taking care of other people's property or holding other people's forgetting things or buried objects. Otherwise, the possession itself is illegal, and the crime should be punished according to what crime, which does not constitute this crime.

4? Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 2 years but not more than 5 years and fined.

this crime belongs to the crime of telling and dealing with it.

Zhang Xiaoyu v. Jiang Jianda for the crime of embezzlement and compensation for economic losses

Intermediate People's Court of Shaoxing City, Zhejiang Province

(2) No.185

Appellant (defendant in the original trial) Jiang Jianda, male, born on August 1, 1949, Han nationality, Zhuji City, Zhejiang Province. He was detained on March 1, 2 and arrested on March 31, 2. Now he is detained in Zhuji detention center.

Defender Li Naiqiao, lawyer of Zhejiang Zhengzhong Law Firm.

Defender Xu Jianxing, legal worker of Zhuji Economic and Legal Service Office.

Zhang Xiaoyu, the private prosecutor in the original trial and plaintiff in the incidental civil action, is female, born on September 9, 1957, Han nationality, a native of Zhuji City, Zhejiang Province, a worker, and lives in the dormitory of Chengguan Town Federation of Trade Unions in Zhuji City.

the people's court of zhuji city, Zhejiang province tried the case of Zhang Xiaoyu, a private prosecutor and plaintiff in incidental civil action, v. Jiang jianda, the defendant, who committed embezzlement and compensated economic losses, and made a criminal incidental civil judgment (2) No.238 on June 28, 2. Jiang Jianda, the defendant of the former city, refused to accept the appeal. Our court formed a collegial panel according to law and heard the case in public. Appellant Jiang Jianda, his defenders Li Naiqiao and Xu Jianxing, private prosecutor in the original trial and plaintiff in incidental civil action Zhang Xiaoyu attended the proceedings. The trial is now over.

the original judgment found that in November 1997, the private prosecutor Zhang Xiaoyu entrusted his brother Zhang Liqun to send more than 6, meters of cotton and linen shirt fabric to the defendant Jiang Jianda to process 4, short-sleeved shirts, and Jiang Jianda finished the processing. After that, except for 5 pieces sent to Ruan Zhongcai in August 1998 and 121 pieces picked up sporadically by Zhang Liqun, the remaining 3,379 pieces have been kept in Jiang Jianda's place. On April 7, 1999, Jiang Jianda sold 3,379 shirts to Wu Runming without telling Zhang Xiaoyu and Zhang Liqun. In May of the same year, Zhang Xiaoyu and Jiang Jianda signed a supplementary processing agreement, stipulating that the processing fee was 19, yuan. After Zhang Xiaoyu failed to take delivery of the goods, she filed a civil lawsuit with the court. In the trial of the Economic Court, Jiang Jianda only admitted to receiving 5 shirt fabrics, denied receiving the remaining 3,5 shirt fabrics, and argued that the shirts he sold to others had nothing to do with Zhang Xiaoyu and Zhang Liqun. Zhang Xiaoyu immediately reported the case to the public security organ. When investigating at the police station in Zhuji City, Jiang Jianda once again denied it. On February 28th, 2, when the Economic Investigation Brigade of Zhuji Public Security Bureau investigated, Jiang Jianda confessed all the facts. Appraised by Zhuji Price Office, each of these short-sleeved shirts is worth RMB 24 yuan. Defendant Jiang Jianda encroached on 3,379 short-sleeved shirts of private prosecutor Zhang Xiaoyu, with a value of 81,96 yuan. Excluding the processing fee payable by Zhang Xiaoyu of 19, yuan, the actual value of the encroached property was 62,96 yuan. The evidences to confirm the above facts are: the statement of the private prosecutor Zhang Xiaoyu, the testimony of witnesses Zhang Liqun, Meng Quanmiao and JASON ZHANG, the processing agreement, the railway freight bill, the agreement signed by Jiang Jianda and Wu Runming, the trial record of the Economic Court of Zhuji Court, the inquiry record of the police station in Zhuji City Public Security Bureau, the appraisal conclusion of Zhuji Price Office and Jiang Jianda's confession.

The original trial held that Jiang Jianda's behavior constituted a crime of embezzlement. In accordance with the provisions of the first paragraph of Article 27, the first paragraph of Article 64 and the first paragraph of Article 36 of the Criminal Law of the People's Republic of China, the defendant Jiang Jianda was sentenced to one year's imprisonment for embezzlement, and the defendant Jiang Jianda was ordered to return 3,379 short-sleeved shirts of Zhang Xiaoyu, the private prosecutor, within 1 days after the judgment came into effect. If the original cannot be returned, the compensation shall be discounted at the price of each 24 yuan.

Appellant Jiang Jianda and his defenders both claimed that the facts in the original judgment were unclear, the applicable law was improper, and the procedure was illegal, and they requested the second instance to declare Jiang Jianda innocent.

Zhang Xiaoyu, the private prosecutor in the original trial and plaintiff in the incidental civil action, believed that the facts in the original judgment were clear, the evidence was true and sufficient, the sentence was appropriate, and the order for restitution was reasonable. She requested the second trial to dismiss the appeal and upheld the original judgment.

through trial, it was found that the basic facts such as the time, process and consequences of the original judgment that the defendant Jiang Jianda invaded the shirt of the private prosecutor Zhang Xiaoyu and refused to return it were clear. The evidence of the judgment included: the statement of the private prosecutor Zhang Xiaoyu, which proved that he entrusted Zhang Liqun to handle the shirt processing affairs, and the fact that the contractor Jiang Jianda illegally possessed 3,379 shirts and refused to return them; Witness Zhang Liqun's testimony proves that Zhang Xiaoyu entrusted him with the specific operation of shirt processing. In November 1997, he sent more than 6, meters of cloth to Jiang Jianda's house for Jiang to process it into shirts. Except for 5 shirts reported to Ruan Zhongcai in 1998, other pieces were picked up, and the rest were left with Jiang Jianda, but he was not asked to resell them. After that, the two sides signed a processing agreement and took delivery of the goods from Jiang Jianda in May 1999. The documentary evidence processing agreement states that the processing fee is 19, yuan. Railway waybill, which proves that Jiang Jianda consigned a batch of clothes to Wu Runming on April 7, 1999. The agreement signed between Jiang Jianda and Wu Runming proves that Jiang Jianda resold 3,379 short-sleeved shirts to Wu Runming on April 7, 1999. The trial transcript of the Economic Court of Zhuji Court proves that Jiang Jianda only admitted to receiving 5 pieces of shirt fabrics sent by Zhang Liqun in the trial of the Economic Court of Zhuji Court, and denied the other 3,5 pieces. Jiang Jianda also said that the shirts sold to Wu Runming had nothing to do with this batch of shirts. The testimony of witnesses Meng Quanmiao and JASON ZHANG, and the interrogation record of Zhuji City Police Station prove that when Zhuji City Police Station investigated Jiang Jianda, Jiang Jianda only admitted that he had received the fabric of 5 shirts, but denied that he had received the fabric of the remaining 3,5 shirts. Jiang Jianda also said that more than 3, shirts he sold to Wu Runming had nothing to do with Zhang Liqun. Zhuji Price Office certified the conclusion that the shirts were worth each 24 yuan. Jiang Jianda, the appellant, admitted to processing 4, shirts for Zhang Liqun during the investigation by the Economic Investigation Brigade of Zhuji Public Security Bureau, and later sold 3,379 of them to Wu Runming without telling Zhang Liqun and others.

the above evidence was provided by the private prosecutor in the original trial, and it has probative effect after cross-examination in court, which is confirmed by our court. Appellant Jiang Jianda and his defender suggested that Jiang's resale of 3,379 shirts belonged to exercising a legitimate lien. After investigation, Zhang Xiaoyu, the private prosecutor in the original trial, entrusted his brother Zhang Liqun to handle the ordering affairs of shirts on his behalf, and later established a processing contract relationship with Appellant Jiang Jianda. This has been proved by Zhang Xiaoyu's statement and Zhang Liqun's testimony, and Jiang Jianda also confessed to the fact of processing and contracting these shirts. Because the ordering party and the contractor did not sign a written processing contract in advance, nor agreed on the payment time of the processing fee, and there was no evidence to prove the fact that the ordering party refused to pay the processing fee after being urged by the contractor, the appellant's opinion that its resale behavior was an exercise of lien lacked legal basis. The trial found that the witness Zhang Liqun's testimony proved that the shirts were placed in Jiang Jianda's place, and Jiang Jianda was not asked to resell them. The appellant Jiang Jianda also admitted that the processed shirts were placed in his place. According to the legal provisions of processing contracting, if the ordering party provides raw materials, the ownership of the crops belongs to the ordering party, and the contractor has the obligation to keep the crops, so the crops should belong to the escrow. Jiang Jianda, the appellant, had sold the shirts to others without telling Zhang Xiaoyu before signing the processing agreement with Zhang Xiaoyu. Afterwards, he evaded the delivery of Zhang Liqun many times. Jiang also tried his best to cover up the fact that he had processed 4, shirts for Zhang during the trial of the Economic Court and the investigation of the police station in the city. It can be seen that Jiang Jianda had the intention of illegal possession subjectively, and objectively refused to return it, which accords with the legal characteristics of the crime of embezzlement. Defending the appellant Jiang Jianda and his defender that Jiang's confession in this case was made by the public security organ, which has no right to accept the case, so his confession cannot be used as evidence, our court believes that the evidence obtained by the public security organ in the investigation of civil disputes is true and legal, and can be used as evidence after cross-examination in court. The appellant Jiang Jianda and his defenders believe that the valuation of shirts should be based on the valuation of Shaoxing Price Office. After investigation, the appraisal conclusion of Shaoxing Price Firm was entrusted by the defense, and was appraised according to the samples provided by the defense. The benchmark date of appraisal was selected in March 2, nearly one year after the incident, and the appraisal was carried out at the cost price. However, the appraisal of Zhuji Price Firm confirmed in the original trial was entrusted by Zhuji Public Security Bureau, and the time of the crime was chosen as the benchmark date for the appraisal, and the appraisal was made at the market price. Comparing the two, Zhuji Price Firm's appraisal method is more scientific and its appraisal conclusion is more objective and credible, so the appraisal conclusion of Shaoxing Price Firm provided by the defense is not accepted.

We believe that the appellant (defendant in the original trial) Jiang Jianda secretly sold the things he kept for the purpose of illegal possession, and refused to return them afterwards, which constituted the crime of embezzlement. The original judgment, conviction and applicable law are correct. Jiang Jianda, the appellant, made a bad plot of making a false statement during the judicial investigation, but he was given a lighter punishment according to the actual situation of the case. Therefore, the original trial sentenced him to one year's imprisonment and ordered him to make restitution reasonably. The trial procedure is legal. The appellant Jiang Jianda and his defenders put forward Jiang Jianda's innocent appeal and defense opinions, which were inconsistent with facts and laws, and were not adopted by our court. According to item (1) of Article 189 of the Criminal Procedure Law of the People's Republic of China, the ruling is as follows:

The appeal is dismissed and the original judgment is upheld.

this ruling is final.

presiding judge Chung Hing Chiu

acting as judge Zhang Kai

acting as judge Ying Huazi

August 15th, 2

acting as clerk He Yuqing.