How can the public funds be handed in illegally to the financial management of others for many years?

Typical Case

A person in charge of a state -owned company in A and a private business owner. In 2005, when A did not arrive at the state -owned company, the state -owned company had handed over 20 million yuan in public funds to the company -controlled company's stock trading financial management. The principal and pay the income. In 2006, after the person in charge of the company, the relationship with B was increasingly closely related to B. B proposed to A to A's current stock market, and he had inside information of the stock. He hoped that the state -owned company would continue to increase the entrusted financial management and promise to make money after making money. , I will definitely thank A. In 2007, A violated the company's regulations. Without collective research, it decided to pay the company's stock trading of 100 million yuan to the company's stock market for financial management without collective research. The subsequent stock market changed drastically, which led to a huge loss of stocks purchased by B. After the period of financial management was scheduled, B failed to return the principal and income on schedule. Later, after the country's company repeatedly urged, B returned 20 million yuan in principal. In 2018, the state -owned company prosecuted B to the court. After mediation by the court, B returned to the state -owned company's 80 million yuan principal and 1 million yuan interest.

Disagreement

There are three different opinions on whether the crime of A crime is constituted.

The first opinion is that the purpose of A is to financial management for state -owned companies, which does not meet the three situations of "misappropriation of public funds to personal use", and does not constitute the crime of misappropriation. Although A exercise power in violation of the regulations, the state -owned company has recovered the capital in the end. The consequences of losses do not constitute the crime of abuse of power of state -owned company personnel.

The second opinion believes that A uses the convenience of the position and misappropriate the company's public funds to be handed over to the owner of the private business, which constitutes the crime of misappropriation of public funds.

The third opinion believes that A violates relevant regulations and does not have collective research without collective research, and has unauthorized decision to submit huge public funds to private business owners B to financial management, resulting in more than 10 years of public funds by B. crime.

Evaluation

The author supports the third opinion. The reason is as follows:

(1) A does not meet the essential characteristics of misappropriation of public funds

If the state staff uses the convenience of the position, the misappropriation of public funds will be used for personal use, illegal activities, or the large amount of misappropriation, the large amount of profit, or the large amount of misappropriation and the unpaid amount of more than three months, which constitutes the crime of misappropriation of public funds. According to the "Interpretation of Article 384, Paragraph 1 of the Criminal Law of the People's Republic of China" according to the Standing Committee of the National People's Congress, "those who use public funds for their own funds, relatives, friends, or other natural people; Used; individuals decided to use public funds for other units in the name of the unit, and seek personal interests. "The three cases of personal interests belong to" misappropriation of public funds to personal use ". In this case, from the surface, A without collective research, I personally decided to pay 100 million yuan of public funds to the wealth management of B stocks. At the same time, B promised to thank A after making money. "For other units to use and seek personal interests". However, in -depth analysis of other circumstances in combination with the entire case found that A's behavior does not meet the constituent elements and essential characteristics of misappropriation of public funds. In terms of subjective aspect, according to the explanation of A B and "before," before the financial management of the state -owned company's stock trading and returned the principal and income according to the agreement "," B proposed to the current stock market for the current stock market, and it has the inside information of the stock. Continue to increase the entrusted financial management efforts "and other analysis, A decided to pay the company's huge amount of public funds to B financial management, mainly based on the better of the stock market, B with a certain amount of stock trading ability, and the will to help the state -owned company's stock trading profit. It is also mixed with the "private" motivation that can get a benefit from it, but it has not been further formed by the benefits. Although it was determined by the illegal regulations of the wealth management department of the Stock B00 million yuan, the company signed a wealth management agreement with the company controlled by B, agreed on the date and interest of the funds. For protective measures, the company's deputy president, chief financial officer, etc. also know the matter and sign contracts and transfer funds in accordance with the requirements of A. The financial management behavior is more of the unit will. Combined with the comprehensive analysis of the objective situation of the entire case, A's behavior does not match the essential characteristics of the misappropriation of public funds crimes, and it is not advisable to qualitatively use the crime of misappropriation of public funds. In 2003, the Supreme People's Court's "Minutes of the National Court of Hearing Economic Crime Cases Work Symposium" held the same point of view: "After collective research by the unit leadership, the unit of the unit decided to use the public funds to the individual, or the person in charge of the unit decided to give the public funds to the individual for the interests of the unit. If you use it, the crime of misappropriation of public funds will be punished. The above behavior causes major losses to the unit and constitutes other crimes shall be convicted and punished in accordance with the relevant provisions of the criminal law. "

(2) The behavior of A's behavior is in line with the characteristics of abuse of power crimes

The abuse of authority crimes refers to the actions that transcend the power of the state staff to surpass their powers, decide illegal decisions, handle their right to decide or deal with, or deal with official duties in violation of regulations, causing public property, national and people's interests to suffer major losses. In this case, in terms of subjective mentality, A knows that his behavior violates the relevant regulations of the company, knowing that the stock market contains huge risks, but because of the trust of the good stock market and its high stock market ability, it is also because of trust. The violation of the rules decided to pay the huge public funds to the wealth management of B stocks, resulting in the safety and appreciation and value preservation of state -owned funds, which was seriously harmful. A's violations of their behavior knew about their behavior, and held a laissez -faire attitude towards the results of the harm, which was in line with the subjective characteristics of malfeasance; In terms of objective behavior, A violated the company's regulations. Without collective research, individuals decided to pay huge public funds to Company B, which is a typical "dealing with regulations to deal with official duties." Without considering the results of the harm, A's behavior is very suitable for the performance characteristics of abuse of authority crimes. (3) Determination of state -owned funds is expected to be used as the consequences of the loss of power of A's abuse

First, the expected income can be identified as the consequences of the loss of power abuse. As a result of the harm, it is an essential element for abuse of authority crimes. Whether the behavior of the parties has caused major losses in public property, state, and people's interests. How to calculate the amount of specific losses is a key issue that can constitute a crime of abuse of power. According to the "Explanation of Several Issues on the Application of Criminal Criminal Cases (1)", if economic losses have caused more than 300,000 yuan, it belongs to major losses that cause the interests of the country and the people; Related property losses caused by related crimes. In this case, under the mediation of the court, in 2018, B finally returned all the principal of financial management commissioned by state -owned companies, and paid another 1 million yuan interest. On the surface, it did not cause any economic losses to state -owned assets. Harm. However, further analysis found that under the existing market, funds have the attributes of natural appreciation. A handed huge public funds to B stocks to wealth management, which led to 100 million yuan of state -owned funds for more than 10 years. State -owned assets failed to achieve normal appreciation value. The appreciation part that has not been achieved, that is, the expected income that should be obtained, should be identified as the consequences of losses.

Second, the court's mediation does not affect the causal relationship between A's abuse of power and expected income loss. In this case, there is still a little notable. Under the auspices of the court in 2018, the state -owned company and B reached a mediation agreement. Due to the voluntary behavior between equal civil subjects in the mediation department, it shows that the country's company has voluntarily abandoned the original original. In this context, can the expected income be identified as the consequences of losses caused by abuse? The answer is yes. Judging from the facts of the entire case, the reason why the state -owned company sued B to the court and eventually conducted a "mediation" with B, which is precisely because A's abuse of power is placed in a dangerous situation that cannot be recovered. If a state -owned company, if a state -owned company Do not choose to mediate with B, which will lead to more serious consequences that even the principal cannot be recovered. Therefore, the "voluntary" mediation here is a passive choice for "two harmful power", which is also the result of the result of A abuse of power. , "Give up the expected income" as part of the mediation content, with A's abuse of power, has a causal relationship in the sense of criminal law.

The third is the calculation standard for the expected income as the amount of losses. Under the idea of ​​determining the expected income as the consequences of losses, which standards are accurately calculated to calculate the amount of income? Some opinions believe that in accordance with the annualized 10%yield of 10%of the annualized 10%yield agreed in the financial contract of the state -owned company and B, and take the years of illegal occupation of funds by B; there are also opinions that it should learn from Calculate bank loan interest rates during the same period. The author believes that as a expected income for the consequences of losses, the funds must be under the control of the state -owned company, according to the business practices of the enterprise, they can obtain a very certain degree of income. In this case, if the funds are not possessing, the state -owned company will deposit it at least into the bank to get fixed interest. This part of the interest is the expected income of the most certainty of the funds. For the agreed earnings of 10%of the annualization of wealth management or the bank's loan interest rate in the same period, it is not the inevitable income of a state -owned company, but a possible income when the risk increases, and it should not be used as the amount of loss. In terms of deposit interest rate selection, in accordance with the principles that are conducive to the parties, the minimum deposit interest rate of the same period of the same period should be selected as the calculation standard. When calculating, the professional auditors should be hired to accurately calculate the due interest income according to the occupation time and return time of each funds to ensure that the amount of losses is accurate. (Ai Ping's 13th Investigation Office of the State Administration of Discipline Inspection)

Edit: Liu Yuanhang

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