How is embezzlement convicted after misappropriation? Starting from the case of Wu Dahan, former member of the adjudication committee of the Lushan County People's Court in Henan Province

Source: Website of the Central Commission for Discipline Inspection and the State Supervision Commission

Central Commission for Discipline Inspection State Supervision Commission website Cheng Wei

Special guests

Feng Jinhui Member of the Lushan County Supervisory Commission (Former Director of the Fifth Supervision and Inspection Office of the Discipline Inspection Commission of Lushan County)

Zhang Guoqing Director of the Case Trial Room of the Discipline Inspection Commission of Lushan County

Yang Wuchang Director of the Ninth Examination and Investigation Office of the Discipline Inspection Commission of Lushan County

Ke Xinxin, a post procurator of the Wugang Municipal People's Procuratorate

Li Weijun Judge of Wugang Municipal People's Court

Editor's Note

This is a case in which the enforcement personnel of the people's court took advantage of their positions to embezzle or embezzle the enforcement funds of the case and were investigated and punished. In this case, as a member of the adjudication committee of the Lushan County People's Court and president of the Second Enforcement Division, what are the characteristics of his violations and crimes? In two of the many cases of embezzlement that Wu Dahan was accused of, were also the amount of embezzlement, should these two funds be recognized as the amount of the crime of embezzlement and embezzlement at the same time? Wu Dahan embezzled a total of 100,000 yuan of the execution money of the case twice for financial management, but after the redemption of the financial management, he lent the 100,000 yuan to others to collect interest, and how should the amount of misappropriation be determined if the same money was misappropriated twice? We specially invite the staff of relevant units to analyze it.

Basic facts of the case:

Wu Dahan, male, born in April 1968, was the deputy director of the Executive Bureau of the People's Court of Lushan County, Henan Province, the president of the Second Enforcement Division, a judge at the level of a section, and a member of the adjudication committee.

1. Corruption. From April 2013 to June 2016, Wu Dahan took advantage of his position to embezzle a total of 372,033.62 yuan in the execution of the case in the handling of relevant enforcement cases. Among them, in April 2013, during the execution of a construction contract dispute between a company and a construction company in Henan Province, Wu Dahan took advantage of his position to embezzle the execution of the case of 138,533.62 yuan. In July 2013, during the execution of a project contract dispute between a landscaping company in Henan and a company in Pingdingshan, Wu Dahan took advantage of his position to embezzle 170,000 yuan of the execution of the case.

2. Misappropriation of public funds. From December 2012 to April 2017, Wu Dahan took advantage of his position to embezzle 5,867,515.8 yuan of the execution money of the case for personal finance and business with others. Among them, in August 2012, in order to facilitate the circulation of execution funds, Wu Dahan handled a "gold card" with financial management functions under the recommendation of Li Moumou, wealth manager of the Lushan Branch of the Industrial and Commercial Bank of China (handled in a separate case), and opened the "Smart Express" current financial management function, Wu Dahan agreed and authorized Li Moumou to use the card to purchase wealth management products. By April 2017, Wu Dahan had embezzled 12 execution funds totaling 5,867,515.8 yuan to purchase wealth management products, making a profit of 19,158.33 yuan. In July 2015 and August 2016, Wu Dahan twice embezzled a total of 100,000 yuan of execution funds to lend Li Moumou to do business, and received interest of 40,000 yuan.

Wu Dahan voluntarily surrendered, truthfully confessed his crime, constituted voluntary surrender, and voluntarily handed over all the illegal gains, and the court gave him a mitigated punishment.

Investigation and punishment process:

On November 16, 2020, the Lushan County Supervision Commission opened an investigation into Wu Dahan's suspected serious violations of the law, and on November 20, it took liuzhi measures against him.

【Government Sanctions】On December 31, 2020, the Lushan County Supervision Commission gave Wu Dahan the punishment of dismissal from public office.

【Transfer for Review and Prosecution】 After designating jurisdiction, on December 31, 2020, the Lushan County Supervision Commission transferred Wu Dahan's suspected crimes of embezzlement and embezzlement to the Wugang Municipal People's Procuratorate for review and prosecution in accordance with law.

On February 5, 2021, the Wugang Municipal People's Procuratorate filed a public prosecution with the Wugang Municipal People's Court on suspicion of embezzlement and embezzlement.

【First Instance Judgment】On August 6, 2021, the Wugang Municipal People's Court sentenced Wu Dahan to two years and six months imprisonment and a fine of 200,000 yuan for embezzlement; Sentenced Wu Dawei to two years and six months in prison for embezzlement; and decided to carry out the fixed-term imprisonment of four years and six months and fined him 200,000 yuan.

1. As a member of the adjudication committee of the Lushan County People's Court and president of the Second Enforcement Division, what are the characteristics of Wu Dahan's violations and crimes? Why is Wu Dahan's case prosecuted in a different place?

Feng Jinhui: In August 2020, the Discipline Inspection Commission of Lushan County conducted a verification of Wu Dahan's alleged request for cash and shopping cards from the executor in handling an enforcement case based on reports from the public. Based on the evidence collection and analysis and judgment, the Lushan County Supervision Commission filed a case against Wu Dahan and took measures of retention in custody. After learning that he was being investigated, Wu Dahan wrote out materials and explained the problem of his misappropriation of the execution funds of the case to purchase financial products.

Wu Daxian's violations and crimes have two obvious characteristics: First, there are rules that are not followed, rules are not followed, and the law is known to break the law. As early as 2006, the Supreme People's Court issued the Provisions on the Management of Enforcement Funds and Materials (for Trial Implementation), article 10 of which clearly stipulates that when the funds of the special account for enforcement funds need to be paid, the enforcement personnel shall fill in the approval form for the payment of the case funds, report to the director of the executive bureau or the leader of the competent court for approval, and hand it over to the financial department for handling. However, after Wu Dahan became the president of the Enforcement Division of the Lushan County People's Court in April 2011, he ignored the regulations, bypassed the court's financial department, and without the consent of the executive director or the vice president in charge, applied for a bank card at the bank and used the card to deposit and withdraw the execution of the case. Second, go to great lengths, take advantage of them, and do whatever it takes. Every time Wu Dahan handled an enforcement case, he always hollowed out his mind, taking advantage of the psychology of the applicant executor who was eager to obtain the execution money, and looking for various reasons to ask the applicant for execution money or directly deduct it from the execution money he handled. Relying on this method, Wu Dahan accumulated more than 370,000 yuan in the execution of the embezzlement case.

Zhang Guoqing: Considering that Wu Dahan is a judge and member of the adjudication committee of the Lushan County People's Court, he is suspected of embezzlement and embezzlement during his work, and his main place of crime and main place of office are in Lushan. In order to ensure fair and impartial review of prosecutions and trials of cases, in accordance with the "Provisions of Henan Province on Strengthening Coordination and Cooperation in investigating and handling Cases of Suspected Violations of Discipline and Crimes such as Party Members and Objects of Supervision (Trial Implementation)", the Lushan County Supervision Commission requested the Pingdingshan Municipal Supervision Commission to consult the Pingdingshan Municipal People's Procuratorate to prosecute the case in a different place.

2. Wu Dahan proposed that he had applied for a "gold card" with financial management functions under the recommendation of Li Moumou, subjectively for the convenience of transferring the execution funds of the case, and there was no intention of embezzling public funds, so he should not be found guilty of embezzlement. What is the view of this opinion?

Yang Wuchang: Wu Dahan proposed that the fundamental purpose of handling bank cards or wealth management cards is to work and facilitate the issuance of execution funds, there is no subjective intention of embezzlement of public funds, and the money in the wealth management card is temporarily placed in the card, which does not affect the implementation work, and is issued to the applicant in full and in a timely manner, which is not embezzlement. In this regard, we believe that the crime of embezzlement of public funds is directly intentional in the subjective aspect, that is, the perpetrator deliberately diverts public funds for other purposes knowing that it is public funds, and the purpose of the crime is to illegally obtain the right to use public funds. As for the perpetrator's motive for embezzlement, it may be diverse, and how the motive does not affect the establishment of the crime of embezzlement. Specifically, the crime of embezzlement has the following characteristics in terms of subjectivity: 1. The misappropriation of public funds is illegal. That is, the perpetrator uses public funds privately and without approval or permission, in violation of rules and regulations. 2. The original intention of misappropriation refers to the private use, transfer, occupation and borrowing of public funds. The purpose of the act is to use, not to possess, public funds. 3. Misappropriation does not embezzle public funds, but is ready to be returned, with the characteristics of unauthorized borrowing. Even if it cannot be returned after misappropriation, it is not caused by the subjective and deliberate possession of the perpetrator, but by objective reasons other than the will of the actor.

In this case, Wu Dahan and his defender denied his subjective intent to embezzle public funds, and claimed that they did not cause any adverse consequences. However, based on the relevant evidence, when Wu Dahan handled the above-mentioned bank card, Li XX learned that Wu Dahan was in order to facilitate the circulation of execution funds, in order to complete the task, he recommended to him to apply for a "gold card" and opened the "Lingtong Express" current financial management function, Wu Dahan told Li XX the password of the card and authorized Li XX to use the card to operate the public funds recorded in the account at any time to purchase financial products, and by April 2017, Wu Dahan and Li XX had embezzled 12 execution payments accumulating more than 5.86 million yuan, all of which were used to purchase wealth management products. A total profit of more than 19,000 yuan. Wu Dahan knew and did not object to Li X's use of his bank card to purchase wealth management products, and had obvious subjective intention to embezzle public funds, which was enough to determine that he and Li X constituted the crime of joint embezzlement of public funds.

3. The defender submits that the 38,533.62 yuan in the first corruption case and 170,000 yuan in the second corruption fact are already part of the amount of embezzlement and should be deducted from the amount of embezzlement.

Ke Xinxin: The crime of embezzlement and embezzlement are two kinds of crimes with different social harms. In general, the two are easy to distinguish, but in special cases, qualitative confusion may occur. The difference between the two is manifested in: First, the objects of the two violations are different. Although both crimes violate the right to public property, the degree of violation is different, and the harm to society is also different. The crime of embezzlement infringes on all the powers of possession, use, proceeds and disposal of public property ownership, while the crime of embezzlement only violates the right to possession, use and proceeds of public funds. Second, the two are subjectively and deliberately different. The subjective intent of the crime of embezzlement is the illegal appropriation of public property, while the subjective intent of the crime of embezzlement is the temporary possession and use of public funds with the intention of returning them later. To determine whether misappropriation of public funds has been transformed into embezzlement, it shall be based on the principle of subjective and objective consistency, and specifically determine whether the perpetrator subjectively has the purpose of illegally possessing public funds. Third, the two behave in different ways. The crime of embezzlement is objectively manifested in the use of methods such as embezzlement, theft, and deception to appropriate public property for oneself; while the crime of embezzlement is manifested as an unauthorized decision to use the public funds of one's own unit.

In the first embezzlement case alleged, Wu Dahan's 38,533.62 yuan was already part of the embezzlement: in April 2013, after receiving the entire execution payment of 598,533.62 yuan in a case, Wu Dahan deposited 498,533.62 yuan into his industrial and commercial bank card, and the remaining 100,000 yuan was embezzled in cash. The 498,533.62 yuan deposited in the bank card was then misappropriated to purchase wealth management products, and after the expiration of the wealth management products, Wu Dahan transferred 460,000 yuan from the above 498,533.62 yuan to the applicant executor, and embezzled the remaining part of the 38,533.62 yuan that should have been paid. The 170,000 yuan in the second alleged embezzlement fact is also part of the embezzlement: in July 2013, Wu Dahan received an execution payment of 2.22 million yuan in one case, all of which was deposited into his industrial and commercial bank card and purchased wealth management products, and a month later, Wu Dahan only paid 2.05 million yuan to the applicant for execution, and the remaining 170,000 yuan was embezzled. Based on the above evidence, before Wu Dahan embezzled 38,533.62 yuan and 170,000 yuan of execution funds in two cases, his criminal act of embezzling public funds to purchase wealth management products had been completed, and it independently constituted the crime of embezzlement of public funds.

4. The defender submitted that the 100,000 yuan of case execution money lent by Wu Dahan to Li Moumou for commercial use was a secondary embezzlement and should not be repeatedly identified as the amount of embezzlement. In this regard, how should the amount of misappropriation be determined if the same amount is misappropriated twice?

Li Weijun: In July 2015, Wu Dahan lent 50,000 yuan of case execution money (which had been embezzled for financial management) to Li Moumou for business use through bank transfer, and in May 2016, Li Moumou repaid the principal and interest to Wu Dawei. In August 2016, Wu Dahan lent 50,000 yuan of cash for the execution of the case (which had been misappropriated for financial management) to Li for use, and in October 2020, Li repaid the principal and interest to Wu Dahan. Wu Dahan embezzled a total of 100,000 yuan of public funds and collected a total of 40,000 yuan in interest.

For the defender's opinion, the key lies in how to grasp the determination of the amount of the crime of embezzlement of public funds, and at present, China's criminal law and relevant judicial interpretations do not have provisions on how to determine the multiple misappropriation of the same public funds. In trial practice, practice varies from place to place. Some believe that it should be calculated cumulatively, while others believe that the amount of embezzled public funds is determined by the actual amount that has not been repaid at the time of the incident. In our view, the same amount of public funds should not be cumulatively calculated when the amount is misappropriated multiple times. The perpetrator repeatedly misappropriated the same sum of money, infringing on the right to use the same public money, and if the loss caused, was limited to the sum. Therefore, the amount of the same embezzlement should not be calculated cumulatively on multiple occasions. Article 4 of the 1998 Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Embezzlement of Public Funds stipulates that "if public funds are misappropriated multiple times and are not repaid, the amount of embezzled public funds is calculated cumulatively; the amount of public funds misappropriated after multiple misappropriations is returned to the public funds of the previous misappropriation, and the amount of embezzled public funds is determined by the actual amount that was not repaid at the time of the occurrence of the case." Based on this, whether there is a restitution circumstance is an important consideration factor in whether the amount of the crime of embezzlement of public funds should be cumulatively calculated. Article 4 of the Interpretation stipulates that the circumstances are only one type of the circumstances in which multiple misappropriation of public funds has a restitution, and cannot cover all the circumstances in practice in which public funds have been embezzled multiple times and have the circumstances of restitution. According to the logic of article 4 of the Interpretation, the norm clearly makes a positive evaluation of the circumstances of restitution, encourages the perpetrator to be able to actively return the corresponding funds, and gives a lighter criminal law evaluation. Based on the grasp of the legislative principles, the general rules for determining the amount of the crime committed in this crime can be summarized as follows: If it is misappropriated multiple times and there are no restitution circumstances, the amount of the crime shall be calculated cumulatively, and if there are multiple misappropriations, and if there are circumstances of restitution, the amount of the crime shall not be cumulatively calculated.

In this case, wu Dahan's basic criterion for determining the amount of crime of embezzling the same amount of public funds twice was "the amount of legal infringement actually caused to public funds in the same period of time". Wu Dahan has twice misappropriated the execution money of 100,000 yuan for financial management, but after the redemption of financial management, it was embezzled again in the form of a loan, and there was indeed a situation where the same amount was misappropriated twice, although both embezzlements have benefited, but it should be determined that the amount of single misappropriation, repeated misappropriation can be considered as sentencing circumstances. The court adopted the defender's opinion.