Summary of the trial
Appellant Peng, as a law enforcement staff member of the state administrative department, did not strictly perform his duties in the course of handling administrative punishment cases, which was an abuse of power, causing major losses to national interests, and the circumstances were particularly serious, and his conduct constituted the crime of abuse of power. This case is an abuse of power carried out in the form of "collective research" and is a joint crime.
For specific enforcement personnel, a decision shall be made on whether to pursue criminal responsibility and the punishment that should be given on the basis of a comprehensive determination of circumstances such as the nature of their conduct, whether they raised objections, and the extent of the harmful results. Appellant Peng, as the case-handling personnel in an administrative punishment case, signed the approval document of the punishment recommendation in accordance with the uniform punishment standards provided by the unit in the course of the specific administrative punishment, and his signature was supplemented after the fact, his status was relatively light, and his role was not great, and he should be found to be an accomplice.
Intermediate People's Court of Xiaogan City, Hubei Province
Criminal verdicts
(2017) E 09 Xingzhong No. 132
The original public prosecution organ should be the city people's procuratorate.
Appellant (defendant in the original trial) Peng, male, born on December 8, 1977, from Yunmeng County, Hubei Province, Han nationality, technical secondary school culture, member of the Communist Party of China, former leader of the Supervision Brigade of the Yunmeng County Urban and Rural Planning Bureau, living in Yunmeng County. On September 24, 2015, he was released on bail pending further investigation by the decision of the Yingcheng Municipal People's Procuratorate on suspicion of abuse of power.
Defender: Li Li, lawyer of Hubei Lifeng Law Firm.
On May 2, 2017, the Yingcheng People's Court of Hubei Province heard the case of the Yingcheng People's Procuratorate accusing the defendant Peng of the crime of abuse of power, and rendered the (2016) E 0981 Xingchu No. 134 Criminal Judgment on May 2, 2017. After the verdict was announced, the defendant Peng X was not satisfied and appealed. After accepting the case, this court formed a collegial panel in accordance with law, and after reading the case file, interrogating the defendant, and meeting with the defender, decided not to hold in-court proceedings. With the approval of the Hubei Provincial High People's Court, the case was still unable to be concluded within the statutory time limit after two months of extending the trial period, and the trial period was extended several times after the Hubei Provincial High People's Court reported to the Supreme People's Court for approval. The case was deliberated by the collegial panel, and the adjudication committee discussed and made a decision, and the trial has now been concluded.
The original judgment found that: between May 2010 and November 2013, the defendant Peng, who was then the leader of the supervision brigade of the Yunmeng County Planning Bureau, successively organized personnel to participate in the second phase of the Sleeping Tiger Garden Project of Hubei Fuxin Real Estate Co., Ltd., the Happy Apartment Project of Yunmeng County Real Estate Co., Ltd., the Linyuan Apartment Project of Hubei Xiangjiang Real Estate Co., Ltd., the Dongfanghong Garden Project of Hubei Fuxin Real Estate Co., Ltd., and the Minsheng Apartment Project of Yunmeng County Real Estate Co., Ltd. Hubei Maoyuan Kyoto Real Estate Co., Ltd. Kyoto Famous City Project, Yunmeng County Jingsheng Real Estate Co., Ltd. Xianghu County Community Xianghu County Community 7 projects were measured on the spot, and it was found that the above 7 projects were all built beyond the planning permission area.
After it was discovered that the above-mentioned 7 projects had administrative violations, the defendant Peng, as the undertaker of the case, submitted the construction of the 7 projects beyond the planning permission area to the administrative punishment case for filing. After the case was filed, the defendant Peng did not conscientiously perform his duties in the process of investigating and handling the administrative punishment case, violating Article 64 of the "Urban and Rural Planning Law of the People's Republic of China", Article 4 of the Notice of the Ministry of Housing and Urban-Rural Development of the People's Republic of China and the Ministry of Supervision of the People's Republic of China on Strengthening the Management and Supervision and Inspection of the Floor Area Ratio of Construction Land (Jiangui [2008] No. 227) and the Ministry of Housing and Urban-Rural Development of the People's Republic of China "Guiding Opinions on Regulating the Discretion of Urban and Rural Administrative Punishments" The provisions did not put forward the opinion of confiscating the illegal income and imposing fines on the above-mentioned 7 illegal construction projects, and only proposed a penalty of 5% or 7% of the project cost of the over-area part of the over-planning permission area, which caused a total national loss of 105,604,867.5 yuan after being submitted to the leaders of the brigade and the bureau for approval.
After the case, the Yunmeng County Planning Bureau issued an administrative penalty decision to confiscate the illegal income for the above-mentioned projects involved in the case. It is described as follows: 1. In May 2011, Hubei Fuxin Real Estate Co., Ltd. approved the total construction area of 6,724 square meters for the second phase of the Sleeping Tiger Garden project, and in July 2012, the total area of planning and acceptance was 10,404.18 square meters, and the construction area was 3,680.18 square meters. On June 7 of the same year, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau leaders, he deducted the civil air defense relocation construction fee of 58,882 yuan and the supporting fee of 110405 yuan paid by the development enterprise, causing a loss of 6,296,735.18 yuan to the state. 2. In September 2010, Yunmeng County Real Estate Co., Ltd. approved the total construction area of 2938 square meters, and on December 24, 2012, the total construction area was 3964.05 square meters, and the construction area was 1026.05 square meters. On November 4 of the same year, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted 16,416 yuan of civil air defense and relocation construction fees and 30,781 yuan of supporting fees paid by the development enterprise, causing a loss of 1,658,146.45 yuan to the state. 3. In July 2012, Hubei Xiangjiang Real Estate Co., Ltd. approved the total construction area of 1315.5 square meters for the Linyuan apartment project, and on September 3, 2013, the total construction area was 4487.83 square meters, and the construction area was 3172.33 square meters. On March 5 of the same year, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted the civil air defense relocation construction fee of 50,757 yuan and the supporting fee of 95,169 yuan paid by the development enterprise, causing a loss of 5,589,646.64 yuan to the state. 4. In March 2011, Hubei Fuxin Real Estate Co., Ltd. Dongfanghong Garden Project approved a total construction area of 70,035.68 square meters, and on September 25, 2013, the total construction area of 98,035.4 square meters was planned and accepted, and the construction area was 27,999.72 square meters. On August 19 of the same year, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted 447995 yuan of civil air defense construction fees, 839991 yuan of supporting fees and 3,000,000 yuan of transfer fees paid by the development enterprise, causing losses of 59,859,372.52 yuan to the state. 5. In November 2012, Yunmeng County Real Estate Co., Ltd. approved the total construction area of 13,565.4 square meters, and on March 11, 2014, the total construction area of 14,529.26 square meters was planned and accepted, and the construction area was 963.86 square meters. On August 22, 2013, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted the civil air defense relocation construction fee of 15,421 yuan and the supporting fee of 28,915 yuan paid by the development enterprise, causing a loss of 3,069,895.66 yuan to the state. 6. In September 2010, Hubei Maoyuan Kyoto Real Estate Co., Ltd. approved the total construction area of 39,136.7 square meters, and on February 25, 2014, the total construction area of 45,098.25 square meters was planned and accepted, and the construction area was 5,961.55 square meters. On August 23, 2013, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted 28,504 yuan of civil air defense relocation construction fees and 178846 yuan of supporting fees paid by the development enterprise, causing a loss of 16,383,643.65 yuan to the state. 7. In November 2013, Yunmeng County Jingsheng Real Estate Co., Ltd. Xianghu County Community approved a total construction area of 50,200 square meters, and on December 22, 2014, the total area of planning and acceptance was 54,973.73 square meters, and the construction area was 4,773.73 square meters. On December 4 of the same year, the defendant Peng, as the undertaker of the case, put forward opinions on handling the case in violation of regulations, and after obtaining the approval of the leaders of the brigade and the bureau, he deducted 114569 yuan of civil air defense construction fees, 143211 yuan of supporting fees and 3,130,000 yuan of transfer fees paid by the development enterprise, causing losses of 12,747,427.4 yuan to the state.
The original judgment held that the defendant Peng, as a staff member of a state organ, did not fully and correctly perform his statutory duties in the course of administrative law enforcement, submitted punishment opinions in violation of regulations, and abused his power, causing the state to suffer major losses, and the circumstances were particularly serious, and his conduct constituted the crime of abuse of power. Defendant Peng X was able to truthfully confess after being brought into the case, and his attitude in admitting guilt was good, and his status and role as the leader of the supervision brigade in the process of administrative punishment were relatively small, and he had his own limitations in the process of law enforcement, and all had mitigating circumstances. It was then ruled that the defendant Peng X was guilty of abuse of power and was sentenced to seven years imprisonment.
The main defense opinions put forward by appellant Peng and his defender are: 1. The facts found in the original judgment were unclear, the evidence was insufficient, and the law was wrongly applied, and Peng X did not constitute the crime of abuse of power. (1) The seven projects in this case did not violate the overall planning and nuclear control plan of Yunmeng County, and did not have an impact on the implementation of the plan and could not take corrective measures to eliminate the impact. (2) The assessment report cannot be used as evidence for the verdict, and the existing evidence cannot prove that the appellant Peng caused a loss of 105,604,867.5 yuan to the state. (3) The appellant subjectively did not fail to perform his duties conscientiously, and the administrative penalty opinion and penalty standard in this case were the unified standards of the Planning Bureau, and the appellant's signature was supplemented for archiving. 2. Even if it is found that Peng's conduct constitutes the crime of abuse of power, the sentence is excessive. Request for a suspended sentence or a waiver of the sentence. (1) The appellant's conduct constituted voluntary surrender. (2) The appellant's conduct was minor in nature and not subjectively vicious. (3) The loss of the first instance has not yet occurred, and the administrative penalty measure of confiscation of illegal income is being implemented.
After the second-instance trial, it was ascertained that the first-instance judgment found that the appellant Peng had organized personnel to participate in the second phase of the Sleeping Tiger Garden Project of Hubei Fuxin Real Estate Co., Ltd., the Happy Apartment Project of Yunmeng County Real Estate Co., Ltd., the Linyuan Apartment Project of Hubei Xiangjiang Real Estate Co., Ltd., the Dongfanghong Garden Project of Hubei Fuxin Real Estate Co., Ltd., the Minsheng Apartment Project of Yunmeng County Real Estate Co., Ltd., the Kyoto Famous City Project of Hubei Maoyuan Kyoto Real Estate Co., Ltd., and the Yunmeng County Jingsheng Real Estate Co., Ltd. Xianghu County Community Xianghu County Community 7 projects survey, measurement found that the above 7 projects have exceeded the planning permission area of construction. After discovering that the above-mentioned seven projects had administrative violations, the appellant Peng, as the undertaker of the case, submitted the construction of the seven projects beyond the planning permission area to the administrative penalty case for filing.
After the case was filed, in the process of investigating and handling the administrative punishment case, the defendant Peng did not put forward the opinion of confiscating the illegal income and imposing a fine on the above-mentioned 7 illegal construction projects, but only proposed a penalty recommendation of a fine of 5% or 7% of the project cost of the excess area exceeding the planning permission area, and his behavior violated Article 64 of the "Urban and Rural Planning Law of the People's Republic of China" (hereinafter referred to as the "Urban and Rural Planning Law") and the "Guiding Opinions on Regulating the Discretionary Power of Urban and Rural Administrative Punishment" (hereinafter referred to as the "Guiding Opinions on Regulating the Discretionary Power of Urban and Rural Administrative Punishments" (hereinafter referred to as the "Guiding Opinions on Regulating the Discretionary Power of Urban and Rural Administrative Punishments" issued by the Ministry of Housing and Urban-Rural Development and the Ministry of Supervision of the People's Republic of China (hereinafter referred to as the "Urban and Rural Planning Law"). Guiding Opinions"), the facts that have caused significant losses to the state are clear.
This court held that the appellant Peng, as a law enforcement staff member of the state administrative department, did not strictly perform his duties in the course of handling administrative punishment cases, which was an abuse of power, causing major losses to national interests, and the circumstances were particularly serious, and his conduct constituted the crime of abuse of power.
This case is an abuse of power carried out in the form of "collective research" and is a joint crime. For specific enforcement personnel, a decision shall be made on whether to pursue criminal responsibility and the punishment that should be given on the basis of a comprehensive determination of circumstances such as the nature of their conduct, whether they raised objections, and the extent of the harmful results.
Appellant Peng, as the case-handling personnel in an administrative punishment case, signed the approval document of the punishment recommendation in accordance with the uniform punishment standards provided by the unit in the course of the specific administrative punishment, and his signature was supplemented after the fact, his status was relatively light, and his role was not great, and he should be found to be an accomplice. There is an indirect causal relationship between Appellant Peng's conduct and the harmful result, but the relevance is small, and the circumstances of his crime are minor and do not require a criminal punishment, so he may be exempted from criminal punishment.
Where some of the facts found in the original judgment, such as the amount of losses, were erroneous, and the sentence was improper, this court will change the judgment in accordance with law in accordance with the ascertained facts. The original judgment did not make a judgment on the administrative confiscation of illegal income to be handed over to the state treasury, and this court made a judgment in accordance with law. Accordingly, in accordance with the provisions of Article 397, Paragraph 1, Article 25, Paragraph 1, Article 27, Paragraphs 1 and 2, Article 37, and Article 64 of the Criminal Law of the People's Republic of China and Article 225, Paragraph 1, Paragraph 2 of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:
1. Revoke the criminal judgment of the Yingcheng People's Court of Hubei Province (2016) E 0981 Xingchu No. 134.
2. Appellant Peng X committed the crime of abuse of power and was exempted from criminal punishment.
3. All illegal income administratively confiscated in this case shall be turned over to the state treasury.
This judgment is final.
Presiding Judge: Luo Yadong
Judge Lu Li
Judge Li Yanping
December 27, 2017
Clerk: Xiao Jin
Transferred from the Supreme Referee Guide official account