"The prosecutor questioned the appellant about the facts ascertained in the first-instance judgment." The presiding judge looked at the prosecutor.

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"The court investigation is over, and now the court argument is open. Before the debate, the court draws the attention of the prosecution and the defense to the fact that the debate should mainly focus on the determination of the charge, sentencing and other controversial issues.

The appellant will speak first. The presiding judge said step by step.

Xu Qiguo is still the same set of words, and it means over and over again, I don't constitute a crime.

"Appellant Xu Qiguo's defender spoke." The presiding judge continued the proceedings.

"Presiding Judge and Judge: The defender believes that the appellant Xu Qiguo does not constitute the crime of embezzlement of public funds for the following reasons:

According to Article 384 of the Criminal Law, there are three objective acts to establish the crime of embezzlement of public funds, namely, a state functionary who takes advantage of his position to embezzle public funds for personal use and carry out illegal activities; or embezzling a relatively large amount of public funds to carry out profit-making activities; or embezzled public funds in a relatively large amount that has not been repaid for more than three months.

First of all, according to the evidence on record, the appellant Xu Qiguo lent public funds to the training school for use, and after the training school received the money, it used the money for legitimate school-running activities, which was obviously not an illegal activity.

Second, Xu Qiguo's loan to the training school was an act of mutual rescue between units, and lending the village's public funds to a private school for expansion work should not be recognized as a profit-making activity.

Finally, the appellant's conduct did not fall within the circumstances of embezzlement of public funds for personal use.

According to the "Interpretation of the Standing Committee of the National People's Congress on the First Paragraph of Article 384 of the Criminal Law of the People's Republic of China", the embezzlement of public funds "for personal use" is interpreted as three situations:

In the first case, public funds are used by themselves, relatives, friends, or other natural persons;

In the second case, public funds are used by other units in the name of an individual;

In the third circumstance, an individual decides to use public funds in the name of a unit for the use of other units to seek personal interests.

Based on the evidence in this case, it can be seen that the user of the public funds in this case is a unit (training school), so the first circumstance can be directly excluded.

The 2 million yuan compensation for land requisition that Xu Qiguo decided to lend was lent in the name of the village committee, not in the name of an individual.

Xu Qiguo had already lent 2 million yuan of public funds to the training school before the village committee held a meeting to study the lending of 6 million yuan of public funds to the training school.

Although Xu Qiguo personally decided to lend the 2 million yuan without explaining it to the village committee, it cannot be determined that the loan was made in his personal name.

Because, judging from the voucher of the transfer of 2 million yuan, the payer is clearly stated to be the village committee, and the payee is the training school; Judging from the receipts of the training schools, it is also stated that they received a loan from the village committee; Judging from the procedures for handling the loan and repayment, Xu Qiguo did not privately lend the public funds to the training school, but handled it through a member of the village committee and an accountant, and throughout the process of borrowing, the loan was always controlled in the name of the village committee until the repayment was due. When repaying the loan, the training school also directly repaid the money to the village committee, rather than to Xu Qiguo personally.

It can be seen that there is no evidence to prove that Xu Qiguo borrowed money from the training school in his personal name, and the personal decision to lend public funds and the lending of public funds in his own name are two completely different concepts.

In this case, the village committee knew the whereabouts and uses of the 2 million yuan of public funds, and directly controlled the recovery of the IOUs on schedule.

Therefore, Xu Qiguo's conduct does not fall under the circumstance of "using public funds for the use of other units in his personal name" as provided for in item (2) of the Interpretation of Article 384, Paragraph 1 of the Criminal Law of the People's Republic of China of the National Senior Officials' Conference. Therefore, the first-instance judgment erred in finding that Xu Qiguo had 'embezzled public funds to others in his personal name'.

After Xu Qiguo lent 2 million yuan, the village committee discussed and decided to lend 6 million yuan to the training school, and although Xu Qiguo did not explain the previous loan of 2 million yuan during the village committee's study, he actually included the 2 million yuan when performing the contract with the training school, and there is no evidence to prove that Xu Qiguo has sought personal interests as a result.

Therefore, the appellant's conduct did not fall under the circumstance of 'an individual deciding to use public funds in the name of a unit for the use of other units for personal gains' as provided for in item (3) of the Interpretation of Article 384, Paragraph 1 of the Criminal Law of the People's Republic of China of the National Senior Officials' Council.

To sum up, Xu Qiguo's lending of public funds to the training school was neither 'misappropriation of public funds to others in his personal name', nor was it 'an individual's decision to use public funds for other units in the name of a unit to seek personal interests', so Xu Qiguo's personal decision to lend public funds to the training school did not conform to the provisions of the legislative interpretation that the misappropriation of public funds was 'for personal use', and therefore did not constitute the crime of misappropriation of public funds, and the court was requested to sentence the appellant not guilty in accordance with law. Complete. Fang Yi expressed his defense opinion.

"It is now up to the Prosecutor to speak." The presiding judge said.

"Presiding Judge, Judge: We believe that the court of first instance found that the facts were clear, the evidence was sufficient, and the law was correctly applied, and we request the court to reject the appellant's appeal request in accordance with the law. Complete. The inspector spoke.

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

"Okay, in response to the defender's defense, we mainly make the following points:

The borrower's training school is a private school, which is a school for the purpose of profit-making activities, and the appellant Xu Qiguo clearly knew the nature of the training school and the purpose of the loan and repaid the loan to the training school, which is to embezzle public funds to carry out profit-making activities.

Based on the second paragraph of Article 2 of the 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, which stipulates that 'misappropriation of public funds for the use of others, knowing that the user is using them for profit-making activities or illegal activities, it shall be deemed that the misappropriator has misappropriated public funds for profit-making activities or illegal activities', we believe that the appellant's conduct meets the requirements on misappropriation of public funds for profit-making activities and constitutes the crime of misappropriation of public funds. Complete. The inspector said.

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

"Based on the prosecutor's defense and response, the defense counsel issued the following defense opinions:

The essence of embezzlement of public funds is the private use of public funds for private gain. In this case, Xu Qiguo borrowed money from the training school mainly to seek benefits for the village committee, the ownership unit of public funds, and to solve the problem that the village committee had not retained it for many years and that funds were tight.

In this case, there is no evidence to prove that Xu Qiguo subjectively lent public funds for personal gain, nor does there be any evidence to prove that Xu Qiguo sought personal interests, which is essentially different from the embezzlement of public funds for private use and the use of public funds for personal gain, so his behavior is not a misappropriation of public funds for profit-making activities. Complete. Fang Yi responded.

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(End of chapter)