"What if you don't get sentenced to death?" Qian Wendao.

"That's better! Time will heal all the pain. If the pain between their father and daughter can't be resolved in time, we lawyers can't solve it. Just put your words in place and fulfill our duties as lawyers! Fang Yi looked at Qian Wendao.

"Well, I see." Qian Wen walked thoughtfully towards the workstation.

"Hey! Lao Fang, have you started to take apprentices? After Qian Wen left, Huang Yuanchao came over with a smile.

"Don't talk nonsense. I'm just working with Mr. Qian. Fang Yi glanced at Huang Yuanchao.

"Lawyer Qian is actually very good, he is very patient with clients, but he has a little less momentum and a little poor ability to resist pressure, and he may not be able to hold it down when he encounters big clients, and he is not suitable for big cases." Huang Yuanchao said in a low voice.

"Let's ...... this, in fact, it depends on whether the ancestor will reward the food, if the ancestor appreciates the food, he will be able to practice it in a year or two." Fang Yi hesitated.

"I'm hanging! By the way, I'll get down to business with you. Huang Yuanchao said in a low voice.

"What's the matter?" Fang Yi said seriously.

"I'm going to talk about a legal counsel unit in a while, it's a big client, and when you and Ma Yi go with me, you will say that you are a team with me. Sort of, help me stay up. Huang Yuanchao smiled and said.

"What should I do, that's it, no problem." Fang Yi happily agreed: "But you have to tell me in advance, I can arrange the time." ”

"Ora!" Huang Yuanchao stretched out his right hand, made an OK gesture, and then turned back to his workstation.

A week later, at noon on a scorching summer day, Fang Yi and Qian Wen, who had had lunch, walked out of a small restaurant not far from the courthouse.

"Lawyer Qian, it's already like this, don't worry about it." Fang Yi glanced at Qian Wengui, who was beside him with his head bowed and listless, and persuaded.

At half past ten o'clock this morning, Xiao Wang's murder case opened, and the trial process was very simple, Qian Wen made a final defense speech with Fang Yi's encouragement.

In the courtroom auditorium, many media reporters with long guns and short guns came to the courtroom, preparing to use today's murder case as a negative teaching material to warn the public that impulse is the devil. Relevant departments are also preparing to take this opportunity to carry out a month-long clean-up live broadcast operation.

The scene of the trial presented a one-sided situation, and the prosecutor gushed about the evil deeds committed by Xiao Wang, calling him a heinous murderer and extremely harmful to society. It may be a public trial, because there are media reporters below, the prosecutor's desire to perform is very strong, and the scene effect is also very good.

Fang Yi argued with reason, brought up the past, and said that Xiao Wang was a victim who wore a cuckold like Wu Dalang and had no money, and pointed to the root of the crime in the live broadcast.

Qian Wen's final defense opinion even explained the victim's fault and the defendant's cooperation with the investigation after being brought into the case, which was beneficial to the defendant's sentencing, and classified Xiao Wang's behavior as a murder of passion.

Hearing the prosecutor's displeasure for a while, the court appointed a lawyer to provide legal aid services, just go through the motions and cooperate, why don't you talk about it endlessly!

The judge also frowned, such a simple case, such a serious incident, a homicide case! And it's still his wife who kills ......, the social harm is so great, is it necessary to spend so many words? But that's fine, the media reporters in the provincial auditorium didn't write it.

After the trial, the presiding judge announced the verdict in court, Xiao Wang was sentenced to death, and he was executed immediately!

"Hey! That's all there is to it. I didn't expect you to be right! Qian Wen squinted at the sky and sighed.

"Is there a letter on Xiao Wang's daughter's side?" Fang Yi asked.

"I told her about the court session two days ago, but she didn't reply to me, and I don't know if she came today." Qian Wendao.

There were a lot of people sitting in the auditorium, as well as media reporters, she didn't know Xiao Wang's daughter, so she didn't know that Xiao Wang's daughter was not in the auditorium.

"Well, when the verdict comes down, mail it to her directly. Remember to ask the judge for a copy of the verdict and use it for binding. Fang Yi was not interested in the follow-up, so he threw the rest of the work to Qian Wen.

The next week, Fang Yi took a train to Lu Province, and the hotel he chose was not far from the district court, less than a 10-minute walk. Because tomorrow morning at nine o'clock, Peng Huanan's theft case will be heard in the district court.

The sun at eight or nine o'clock in summer is not very comfortable shining on people, and after the door of the district court was opened, Fang Yi and Peng Huanan's daughter-in-law Liu Fangzhi walked into the courtroom.

Although it was an open trial, there were not many people in the auditorium, and Liu Fangzhi listened nervously as the procurator read out the indictment.

“…… After the defendant Peng Huanan terminated the labor contract with the victim's technology company, he still kept the keys to the workshop and warehouse, and took the opportunity to steal the property in the victim's unit's warehouse, and after selling it, he kept the stolen money for himself. After verification, the value of the stolen property totaled more than 53,800 yuan.

The public prosecutor believes that his conduct has violated the provisions of Article 264 of the Criminal Law of the People's Republic of China, the facts of the crime are clear, the evidence is credible and sufficient, and he should be investigated for criminal responsibility for the crime of theft. In accordance with the provisions of article 176 of the Criminal Procedure Law of the People's Republic of China, a public prosecution is initiated, and a sentence is requested in accordance with law. Inspector Gao's tone was as cold as an ice lump.

"Defendant Peng Huanan, did you hear clearly the indictment read out by the prosecutor just now? Do you have any objections to the facts and charges of the crime charged against you in the indictment? "The presiding judge is a tall man with a square face.

"I heard clearly, I have no objection to the facts of the crime, but I have objections to the charges. The keys to the workshop and warehouse were given to me by the company, and I was still in charge of the workshop affairs during the company's shutdown, and the general manager also approached me and told me that after the company resumed work, I would still serve as the workshop director.

Until the time of the incident, the company had not taken back the keys to the workshop and warehouse in my hands, and had asked me several times to open the door to the workshop to check the situation of machinery and equipment and sell the old equipment. In fact, after the expiration of the labor contract, I was still managing the workshop and warehouse, so I did not commit the crime of theft. Peng Huanan argued.

A few days ago, when Fang Yi went to the detention center to meet with Peng Huanan, he informed him of the defense plan and answered his consultations. Peng Huanan is a smart person, and he naturally knows what to say during the trial without Fang Yi's reminder.

"The prosecutor may interrogate the defendant about the facts of the crime charged in the indictment." The presiding judge said.

"Okay, Presiding Judge." The senior prosecutor turned his head to look at Peng Huanan in the defendant's dock and asked, "Defendant Peng Huanan, what position did you hold in the victim unit before the victim unit stopped production?" ”

"Serve as a workshop director." Peng Huanan said.

"After the victim unit stopped production, how were the workers in your workshop settled?" Inspector Gao asked.

"It's a long vacation! Later, they resigned one after another, and basically left. Peng Huanan said.

"After the expiration of the employment contract, have you ever asked the company to renew the employment contract?" Inspector Gao asked.

"No, the company was half-dead at the time, so I didn't mention the renewal." Peng Huanan said.

"You mentioned earlier that the general manager intends to continue to let you be the workshop director after the resumption of work, so has the company mentioned to you about renewing the labor contract?" Inspector Gao asked.

"I haven't mentioned it, but it's ......," Peng Huanan said.

"Defendant Peng Huanan, if I ask you anything, you will answer anything, you don't need to defend yourself, understand?" Prosecutor Gao interrupted Peng Huanan's words.

"Understood!" Peng Huanan said.

"After the expiration of the labor contract, will the company still pay you social security and wages?" Inspector Gao asked.

"At that time, after the expiration of the labor contract, the social security stopped! During the suspension period, living expenses were paid and no wages were paid, and later the labor contract expired and the living expenses were also stopped. Peng Huanan said.

"How many locks are there for the doors of the workshop and warehouse? Has it been replaced? The high prosecutor asked

"There are four locks, two of which have been replaced." Peng Huanan said.

"Who replaced it?" Inspector Gao asked.

"I changed it." Peng Huanan said.

"What was your motivation for changing the locks on the gates and warehouses?" Prosecutor Gao asked.

"At that time, I had no income and I couldn't find a suitable job, so I wanted to exchange the things in the warehouse for some money to support my family." Peng Huanan looked ashamed.

"You take out the items in the warehouse and sell them for money, is it before or after the expiration of the labor contract?" Inspector Gao continued to ask.

"It's after the expiration of the labor contract." Peng Huanan said.

"Presiding Judge, I'm done!" High Inspector said.

"Does the defendant Peng Huanan's defender need to ask the defendant questions?" The presiding judge said.

"Questions." Fang Yi said.

"Defendant Peng Huanan, who has the keys to the door of the workshop and warehouse?" Fang Yi asked.

"There are two big locks on the doors of the workshop and the warehouse, a workshop key and a warehouse key are considered a set, there are two sets in total, and the deputy director and I each take one set." Peng Huanan said.

"During the shutdown period, what is your main job before the expiration of the labor contract you signed with the company?" Fang Yi asked.

"During the shutdown of the company, the workers in the workshop were gone, and the deputy director and I took turns on duty to be responsible for the management of the workshop and the warehouse. We're in charge of cooperating. Peng Huanan said.

"What about after the expiration of the employment contract? Are you still on the shop floor? Fang Yi said.

"After the expiration of the labor contract, because the company no longer pays me living expenses and does not pay social security, I am usually at home when I have nothing to do, and occasionally I go to the workshop to go around, and the company will call me if there is something." Peng Huanan said.

"Did the company call you after the labor contract expired? I mean you're at home all this time? Fang Yi asked.

"At first, the company called me and the deputy director once, asking us to cooperate with the lawyer and accountant sent by the investor to count the workshop property, but then it was gone.

Later, the deputy director went to work in a friend's company, and I saw that the company was resuming work indefinitely, so I moved evil thoughts......" Peng Huanan said.

"Does the company require you to hand over the keys to the workshop and warehouse?" Fang Yi asked.

"No, I had the keys to the workshop and warehouse in my hands at that time, and the company management knew about it. After my employment contract expired, the company never mentioned that I should hand over the keys. Peng Huanan said.

"Presiding judge, the defender has finished asking." Fang Yi said.

"Now for the presentation of evidence and cross-examination, do the prosecution and defense and the defendant have any new evidence to submit?" The presiding judge asked.

"Nope." Tripartite.

"The prosecutor will present the evidence below." The presiding judge said.

……

Fang Yi and Peng Huanan had no objection to the evidence presented by the prosecutor, and Peng Huanan had nothing to defend the fact of stealing the company's property, and he admitted it. The focus of the dispute between the prosecution and defense in this case is the characterization of the case, that is, the crime.

"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

I will now turn to the Public Prosecutor. The presiding judge said.

“…… The prosecutor believes that after the expiration of the labor contract of the defendant Peng Huanan, for the purpose of illegal possession, he stole the property of the victim's technology company, sold it, and appropriated the stolen money for himself, and his conduct has constituted the crime of theft, and the amount is huge, and we recommend that the defendant Peng Huanan be sentenced to six years in prison. The court is requested to adjudicate in accordance with the law. Complete! Inspector Gao said.

"Defendant Peng Huanan defended himself." The presiding judge said.

"I didn't renew my labor contract with the technology company because the technology company stopped production at that time, and the general manager told me that I would still be the workshop director after resuming work, and that I was going to renew the labor contract with me after resuming production.

I admit to stealing the company's property, but I took advantage of the convenience of being in charge of the keys to the doors of the workshop and the warehouse, which should be considered embezzlement...... Peng Huanan defended.

"Next, the defender of the defendant Peng Huanan will express his defense opinions." The presiding judge said.

"Presiding Judge, Adjudicator:

The defender believes that the characterization of a criminal case should focus on substance, not form, and the substantive basis for judging whether a person is a staff member of a unit is whether he or she has certain job responsibilities or undertakes certain business activities in the unit, and whether or not he has signed an employment contract with the employing unit and whether he is within the term of the employment contract, is only a formal examination of the identity of the subject.

In other words, whether the defendant Peng Huanan constituted the crime of embezzlement in public office should be examined whether he actually assumed certain "duties" in the victim unit and used his position to facilitate the illegal embezzlement of the victim unit's property.

Returning to this case, although the defendant Peng Huanan's criminal conduct occurred after the expiration of the labor contract, Peng Huanan was still actually exercising management duties at that time, and had management authority over the workshop and warehouse, which met the conditions for the crime of embezzlement.

Therefore, the defender believes that Peng Huanan's conduct constitutes the crime of embezzlement in public office, and in view of the fact that the amount of his crime is not high, he actively cooperated with the investigation of the public security organs, and there are mitigating circumstances, and it is recommended that the defendant Peng Huanan be given a suspended sentence. Complete. Fang Yi said.

"The prosecutor may respond to the defender's comments." The presiding judge said.

“…… The prosecutor believes that Peng Huanan's criminal conduct occurred after the expiration of the labor contract he signed with the victim's technology company, and the two parties did not renew the labor contract, and at this time Peng Huanan was no longer an employee of the technology company, and the technology company was in a state of suspension at that time, and Peng Huanan had no "position" to exercise, so Peng Huanan did not meet the main elements of the crime of embezzlement and should be punished for the crime of theft. Complete. Inspector Gao said.

"The defender may respond to the prosecutor's opinion." The presiding judge said.

"Okay, in response to the prosecutor's comments and responses, the defender makes the following observations:

Defendant Peng Huanan, as the director of the workshop, and the deputy director are jointly responsible for the custody of the door keys of the workshop and the warehouse, and he is responsible for the custody of the warehouse property.

Although the labor contract signed between Peng Huanan and the technology company has expired, according to the evidence submitted by the prosecutor, both the general manager of the technology company and Peng Huanan confirmed that the technology company intends to continue to hire the defendant Peng Huanan as the workshop director after the resumption of work.

The technology company knows the importance of the workshop and warehouse keys, and if they don't want Peng Huanan to continue to engage in the duties of the workshop director, they can take back the keys, but in fact, the technology company has never asked to take back the keys, and after the expiration of the labor contract, Peng Huanan still performs the duty of keeping the warehouse property, so there is a de facto labor relationship between the two parties.

Therefore, the failure to renew the employment contract did not affect the employment relationship between Peng Huanan and the technology company, and Peng Huanan still met the requirements of the subject of the crime of embezzlement. Complete. Fang Yi said.

"Does the prosecutor need to continue to respond to the defender?" The presiding judge asked.

"A response is needed." Procurator Gao felt that he had encountered a difficult opponent: "We believe that the defendant Peng Huanan does not have independent management power over the property he has embezzled, and his act of using the joint management power alone to steal the property of his unit should still be characterized as a crime of theft, and cannot be found to be taking advantage of his position." ”

"The defender may respond to the prosecutor's opinion." The presiding judge said.

"Okay, in response to the prosecutor's opinion, the defender responded as follows:

The defender believes that the objective aspect of establishing the crime of embezzlement requires that the convenience of his position must be used, that is, the defendant Peng Huanan took advantage of the convenience of his own management of the unit's property to illegally take possession of the unit's property.

When we talk about "management", we mean that the actor is directly responsible for the safekeeping, handling, and use of the unit's property, and also has a certain right to dispose of the unit's property.

In practice, in order to achieve the requirements of mutual restraint and mutual supervision, the right to control, dispose of and manage the property of a unit is often exercised by multiple people, such as the financial department, which has both finance and cashier, in order to restrain and supervise each other.

Therefore, after the expiration of the labor contract, the defendant Peng Huanan's management authority over the victim's technology company still extends to all of his duties when he was in office (workshop director), and the convenience arising from his management authority will not be affected by the existence of other co-managers, and his use of the convenience of management power to steal the victim's unit's property does not affect the determination of "taking advantage of his position".

In this case, the keys to the door of the technology company's workshop and warehouse were kept by the defendant Peng Huanan and the deputy director of the workshop respectively. Although the management power is jointly exercised by the workshop director and the deputy director, Peng Huanan's management authority over the workshop warehouse property is not reduced due to the existence of a co-manager. Therefore, the defendant Peng Huanan should constitute the crime of embezzlement. Fang Yi said.

The presiding judge wanted to stop there, but seeing that Prosecutor Gao seemed to have something to say, he continued: "The prosecutor can continue to respond to the defender's opinions. ”

"Okay, Presiding Judge. We believe that in this case, the defendant Peng Huanan adopted the most commonly used method in the crime of theft - picking locks, which just shows that the defendant Peng Huanan's act of stealing warehouse property has gone beyond the scope of 'taking advantage of his position', which has led to a change in the nature of the case, so this case should be characterized as a crime of theft. "Inspector Gao is not convinced, let's do it, I don't believe it, I can't defeat you.

"The defender may continue to respond to the prosecutor's comments." The presiding judge felt that the debate between the two was quite interesting, the reasoning was not clear, the debate was transparent, and it was convenient to write the verdict later.

"Okay, Presiding Judge. What the prosecutor said is what is special about this case.

Defendant Peng Huanan used two keys in his custody to open the big lock and pry open the other two big locks at the same time to steal the property of the victim's technology company's warehouse.

The defender believes that there are four locks in the workshop and the warehouse, and in the process of stealing property, the defendant Peng Huanan used the two keys he was responsible for keeping to open the two locks, and finally entered the warehouse to steal the property with the help of ordinary theft lock picking, and it seems that the act of picking the locks played a major role, but from the perspective of the entire implementation process, the key to the defendant Peng Huanan's ability to successfully achieve the purpose of illegally occupying the unit's property was to take advantage of his position as the workshop director.

To put it bluntly, if the defendant Peng Huanan had not taken advantage of his position, his criminal act would not have succeeded smoothly. Because the workshop was in a state of suspension at the time of the incident, and the entry of non-personnel from the unit into the factory area was restricted by the guards, and it was precisely because the defendant Peng Huanan had served as the workshop director, held the keys to the workshop and the warehouse, and was still performing the duties of the workshop director after the expiration of his labor contract, so he was able to drive into the factory area many times after that and commit criminal acts. This is fundamentally different from the perpetrator in the crime of theft, who is familiar with the environment in which the crime was committed.

It can be seen from this that the convenience of the defendant Peng Huanan's position was the main factor in the success of his crime, which also determined that he was fundamentally different from those ordinary lock-picking thefts. Therefore, defendant Peng Huanan's conduct should still be embezzlement. Fang Yi said.

"Does the prosecutor need to continue to respond to the defender's comments?" The presiding judge looked at the prosecutor.

"Thank you, presiding judge, according to Article 271 of the Criminal Law, the crime of embezzlement in public office is described as: 'Employees of companies, enterprises, or other units take advantage of their positions to illegally take possession of the property of their own units......

This article does not specify the specific mode of conduct of the crime of embezzlement in public office, and we believe that the mode of conduct of the crime of embezzlement in public office described in this article should not include the mode of theft. Therefore, defendant Peng Huanan's conduct should still be characterized as the crime of theft. "Inspector Gao is already a little poor in donkey skills, and although he is unhappy in his heart, he really can't find a better point to refute.

"The defender may respond to the prosecutor's opinion." The presiding judge didn't care what the prosecutor thought, anyway, he listened to it with relish and thought it was quite interesting.

According to the defender, the method of secret theft is also one of the ways of embezzlement in the crime of embezzlement. Although Article 271 of the Criminal Law does not provide detailed provisions on the means of conduct for the crime of embezzlement in public office, this does not prevent us from reaching the above conclusion. Here's why:

According to the Interpretation of the Supreme People's Court in 1995 on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery, Embezzlement, and Misappropriation in Violation of the Company Law, the term "embezzlement" is clarified to refer to the act of the perpetrator illegally taking possession of the property of the company or enterprise by embezzlement, theft, fraud, or other means.

Although the above interpretation was repealed in January 2013, we can still see the SPC's understanding of the term 'embezzlement' in the crime of embezzlement.

In addition, compared with ordinary crimes of embezzlement such as theft and fraud, the crime of embezzlement in public office is special in that the use of the convenience of one's position not only infringes on the property rights of the victim unit, but also violates the employer's requirement of diligence and diligence on the perpetrator. This is also one of the reasons why Article 271 of the Criminal Law does not enumerate and explain specific modes of conduct.

There are many ways of embezzlement in the crime of embezzlement in public office, and there is no need to restrict the specific methods of conduct carried out by the perpetrator, as long as the perpetrator takes advantage of his position to take the property of the victim unit as his own, it is the mode of conduct of the crime of embezzlement in public office.

Therefore, the defendant's act of embezzling the unit's property by means of secret theft should be found to be an act of embezzlement in public office. Complete. Fang Yi said.

……

Seeing that the end of the month is coming, please support all book friends, ask for monthly tickets, recommended tickets, and collections!

(End of chapter)