"It is now up to the Prosecutor to speak." The presiding judge rolled his eyes wide and looked at the prosecutor.

"Presiding judge and adjudicator, we believe that the facts found by the court of first instance are clear, the evidence is sufficient, the law is correctly applied, and the sentence is appropriate, and we request that the court reject the appellant's appeal request in accordance with law. Complete. The male prosecutor said.

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

"In response to the defender's defense opinion, we believe that according to the requirement of uniformity of terminology in the criminal law, the same term in the same legal article should generally be interpreted in the same way.

The "relatively large amount" in the two criminal files for the crime of misappropriation of funds is in the same crime and the same article, and shall be interpreted in the same way.

Since the starting point for "a relatively large amount and not repaid for more than three months" and "a relatively large amount and a relatively large amount for profit-making activities" are both 100,000 yuan, the starting point for "a relatively large amount" in "a relatively large amount will not be returned" in the same crime should also be 100,000 yuan.

Therefore, we believe that the appellant Yunqi misappropriated 150,000 yuan of funds for investment, and has so far failed to return the misappropriated funds, and his behavior was found to be "a relatively large amount and will not be returned", which is consistent with the facts, and should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Therefore, the first-instance sentencing was appropriate. The male prosecutor said.

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

"Okay, based on the prosecutor's defense and response, the defense makes the following defense:

The defense counsel believes that the "relatively large amount" in the two criminal files for the crime of misappropriation of funds should not be interpreted in the same way, for the following reasons:

According to Article 271 of the Criminal Law (2015 Amendment), the crime of misappropriation of funds is divided into two sentencing levels.

The first sentencing level is: Where the unit's funds are misappropriated for personal use or lent to others, and the amount is relatively large and has not been repaid for more than three months, or although it has not exceeded three months, the amount is relatively large, for-profit activities are carried out, or illegal activities are carried out, a sentence of up to three years imprisonment or short-term detention is to be given.

The second sentencing level is: Where the amount of funds of the unit is huge, or the amount is relatively large and is not returned, a sentence of between three and ten years imprisonment is to be given.

In accordance with Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Corruption and Bribery (hereinafter referred to as the "Interpretation"), the starting point for the 'relatively large amount' in the case of misappropriation of funds shall be implemented in accordance with twice the amount standard for the crime of misappropriation of public funds for 'relatively large amounts'.

Article 6 of the "Interpretation" stipulates that where public funds are misappropriated for personal use, profit-making activities, or not repaid for more than three months, and the amount is more than 50,000 yuan, it shall be found to be a 'relatively large amount' as provided for in the first paragraph of Article 384 of the Criminal Law.

According to the provisions of the Interpretation, in the first sentencing level of the crime of misappropriation of funds, whether it is 'misappropriation of funds for personal use or lending to others with a relatively large amount' or 'misappropriation of funds for profit-making activities with a relatively large amount', the starting point standard for 'relatively large amount' here is twice the amount standard for the crime of misappropriation of public funds, that is, 50,000 yuan multiplied by two, that is, 100,000 yuan.

Generally speaking, according to the requirement of uniformity of terminology in criminal law, the same term in the same article of law should indeed be interpreted in the same way. However, for the crime of misappropriation of funds, the defender believes that if the 'larger amount' in the two sentencing grades is interpreted in the same way, it not only violates the principle of proportionality of crime and punishment, but also violates the original intent of the above-mentioned Interpretation.

According to Article 6 of the Interpretation, 'misappropriation of public funds is not returned, and the amount is between 1,000,000,000 and 2,000,000 RMB', shall be found to be a "serious circumstance" as provided for in the first paragraph of Article 384 (Crime of Embezzlement of Public Funds) of the Criminal Law, that is, the conditions for upgrading the statutory sentence.

According to the defender, the crime of 'misappropriation of funds' is compared with the crime of 'embezzlement of public funds', the former is a misdemeanor and the latter is a felony. The circumstances of 'misappropriation and non-refund' are both conditions for upgrading the sentencing level in the above two crimes, so the higher monetary standard should be applied to the condition for the 'misappropriation of funds' in the 'crime of misappropriation of funds', and the upgrade standard should be calculated in accordance with twice the 'amount between 1 million and 2 million RMB' as provided in Article 6 of the above-mentioned Interpretation, that is, between 2 million and 4 million RMB.

If the crime of misappropriation of funds, which is a condition for upgrading the criminal level, 'the amount is relatively large and will not be returned' is determined according to the "relatively large amount" (i.e., 100,000 yuan) in the first criminal file, it will lead to a situation where the statutory penalty for the crime of misappropriation of funds is upgraded to 100,000 yuan, but the statutory penalty for the crime of misappropriation of public funds (misappropriation is not returned) is 1 million yuan, the crime and punishment are obviously incommensurate with the crime, and it also violates the original legislative intent of strictly administering officials.

In addition, it is not unusual in judicial practice to interpret the same term in the provisions of the Criminal Code in different ways. For example, the term "violence", which appears frequently in the Criminal Code, includes violence that causes death or serious injury, violence that causes minor or minor injury, and violence that causes only temporary physical suffering in everyday life without causing any substantial harm.

However, when sentencing 'violence' in specific criminal acts, the degree of harm of 'violence' should still be reasonably corresponded to the corresponding statutory punishment in accordance with the principle of proportionality of crime and punishment.

Similarly, in the crime of misappropriation of funds, since the "relatively large amount" is in the two sentencing levels, the conclusion reached according to the same interpretation will inevitably lead to the incommensurate punishment and contrary to the original intent of the legislation.

In this case, the appellant Yunqi embezzled 150,000 yuan of funds and did not return them, and the court of first instance found that "the amount is relatively large and will not be returned", and the choice of sentencing in the second criminal file, that is, between three years and ten years, is an incorrect interpretation of the standard for the amount of funds for the crime of misappropriation of funds.

The defender believes that Yunqi's misappropriation of 150,000 yuan does not meet the standard of "the amount is relatively large and will not be returned" in the second criminal file, and should be sentenced in the first criminal file.

In summary, the court is requested to change the sentence of the appellant Yun Qi to six months' imprisonment in accordance with the law. Complete! Fang Yi said.

……

The procedures that should be taken are all gone, and the things that should be said in the court have been said, Fang Yi has made his best efforts, as for what the result will be, no one knows except the judges of the collegial panel.

The court was adjourned for ten minutes, and the atmosphere in the courtroom was a little depressing, Yun Zhenxing wanted to come over to Fang Yi to ask about the situation, but seeing that everyone was sitting still, and there were bailiffs swaying back and forth, he still did not leave the auditorium in the end.

In the prosecutor's bench opposite the defense seat, the two prosecutors were bowing their heads and muttering something in a low voice, which was too far away for Fang Yi to hear.

Soon, ten minutes passed, and the three judges walked into the courtroom.

“…… Ask the bailiff to take the appellant Yunqi to court. Seeing that Yun Qi was brought into the courtroom by the bailiff, the presiding judge said confidently: "This case has been reviewed by the collegial panel and a verdict has been formed. In response to the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

…… In this case, the appellant Yun Qi misappropriated 150,000 yuan of his unit's funds, which did not meet the amount standard of "a relatively large amount of money will not be returned" in the crime of misappropriation of funds, and only met the standard of "a relatively large amount of profit-making activities", so the sentence for this act should be up to three years imprisonment or short-term detention.

The original judgment's sentencing of between 3 and 10 years imprisonment for the conduct was an error in the application of law and an improper sentencing, and should be corrected. The verdict reads as follows:

1. The original judgment's judgment on the recovery of unlawful gains is upheld;

2. Revoke the judgment on appellant Yunqi's sentencing and restitution;

3. Appellant Yun Qi committed the crime of misappropriation of funds and was sentenced to six months' imprisonment;

4. Order the restitution of the misappropriated funds (already refunded). ”

After hearing the sentence that was finally commuted, Yun Qi, who was standing below, had a relaxed face, six months in prison, deducting the time he had been detained before, and he could get out in another month, how could Yun Qi not relax.

Yun Zhenxing also breathed a sigh of relief, his son's sentence was commuted from three years to six months, and he was still not satisfied. Does it have to be acquitted? He was a man who understood that his son could not be acquitted if he had committed a crime.

Fang Yi was a little surprised, but he didn't expect the court to really accept his sentencing recommendation and sentence Yun Qi to six months in prison.

In fact, if you think about it carefully, it is also reasonable, after all, Yun Qi's family actively returned the misappropriated funds, and Yun Qi actively cooperated with the investigation after being brought into the case, the court of first instance punished Yun Qi according to the minimum sentence of three years in the second tranche (fixed-term imprisonment of more than three years and seven years), and the court of second instance will also consider applying the low-grade sentence in the first tranche (sentenced to fixed-term imprisonment of less than three years or criminal detention) considering the circumstances of the case, but Yunqi has been detained for more than four months, and the application of criminal detention (more than one month to less than six months) seems too lenient, The time limit is also not appropriate, so it is most appropriate to apply the minimum sentence of the long term of imprisonment (six months).

After the verdict, in order to express his gratitude, Yun Zhenxing specially invited Fang Yi to have a meal at the best restaurant in the city, and everyone accompanied him. Fang Yi was very enthusiastic, and considering that he had to drive back in the afternoon, he didn't drink.

It wasn't until Fang Yi drove away from the hotel and embarked on the way back that the big red envelope promised by Yun Zhenxing was not fulfilled, and Fang Yi couldn't help sighing: The words of the parties really can't be fully believed!!

When the dawn of dawn spread over the earth, the refreshing air outside the window continued to pour into the room through the open window, making Fang Yi, who was sleeping soundly on the big wooden bed, feel a little cool, opened his eyes and glanced at the electronic alarm clock at the bedside, 5:40. Fang Yi stretched his waist, and then lay on the bed and stared at the ceiling in a daze, his physical strength was really not as good as before when he reached middle age.

When I drove home yesterday, it was not yet dinner time, Fang Yi, who was tired all day, changed into a big pants and a big vest, washed his face, and then went to the small restaurant at the door downstairs to have a rice bowl. Back at his lodgings, he wanted to read a book, but after lying on the bed for less than a minute, his eyelids became heavier and heavier, and he soon began to snore.

The gurgling sound in his abdomen interrupted Fang Yi's daze.

In the morning, when Fang Yi came to the law firm and was about to make tea with a teacup, Huang Yuanchao walked over quickly.

"Old Fang, is there any arrangement for tomorrow and the day after tomorrow?" Huang Yuanchao asked.

"I'll take a look!" Fang Yi put down the teacup and flipped through the calendar: "It's okay, there is no arrangement." What's wrong? ”

"The customer I told you last time has eyebrows, just one or two days, you and Ma Yi will go to the Northeast with me, and we will come back in two or three days." Huang Yuan said.

"Are your customers in the Northeast?" Fang Yi was stunned.

"No, his company is in the city, but his hometown is in the Northeast, and his mother lived in the ICU before. I'm going to go over and take this opportunity to connect with each other. Huang Yuan said.

"Lao Huang, is it appropriate to go at this time?" Fang Yi hesitated a little, and said in his heart: People do white things, what kind of excitement is Lao Huang doing!

"What is suitable or inappropriate in this year, I heard that several law firms have already sent people to the Northeast, and I am too late." Huang Yuanchao has a presence.

"Ahh So wicked! What a big customer! Fang Yi said in astonishment.

When the wife of the CEO of Defa Group died, he followed Sun Zhengyi to attend the funeral and pulled the business, but he didn't succeed, and he came out without seeing the main owner, that is, Zhou Shen, whom Fang Yi knew at that time.

This time, Lao Huang proposed to go to the Northeast to participate in the funeral business, which is far away, and it costs a lot of money to run a trip.

"Let's put it this way, the perennial legal counsel hired by their company has a low legal fee of 100,000 yuan a year, but there are more non-litigation projects, and there are some litigation projects.

The relationship was almost over before, this is my personal development of the business, I told the boss, if I can sign it, it will be maintained by the team's permanent legal team, but all the business generated by this company will belong to me, and the lawyer's fee will be my share!

Soon their company's legal counsel is about to expire, and this is the last step in the door! Huang Yuanchao said with a smile.

"Hmmm! It's worth the trip, so what are we going to do? Fang Yi's eyes lit up and asked.

If he can really sign this group company, maybe there will be a criminal case in the future, and with his relationship with Lao Huang, the criminal case will definitely be given priority to himself. Fang Yi estimated that Ma Yi's thoughts were similar to his own, and there must be few executives in the company who are morally corrupt and want to divorce, and they can collect a lot of money by getting one or two cases a year.

"Of course it's a lot of work. You can support me, just cheer me up, and the rest will listen to me. I've covered all the travel expenses, it's good to eat and drink, and you should be traveling. Three days at most! Huang Yuanchao said with a smile.

"Ma Yi and I are the second general!" Fang Yi said.

"Uh-huh! That's what it means. The main reason is that I don't have enough confidence to go alone, and there are many law firms staring at it. There are more people and it is convenient to do things. Huang Yuanchao nodded.

In the afternoon of the same day, Huang Yuanchao booked tickets for Fang Yi and Ma Yi, and early the next morning, the three of them took a taxi to the train station and got on the train to the northeast.

It was late August, and the weather was getting cooler as I traveled north by train. When the three of them walked out of the Harbin Railway Station, it was already afternoon, the sun was emitting a soft light in the west, and as soon as they got out of the train station, the autumn wind blew, and Fang Yi suddenly felt cold, and then put on a casual coat.

(End of chapter)