Inspector Gao was frowning and listening carefully, when suddenly there was no movement on Fang Yi's side, he couldn't help but raise his head, just in time to see Fang Yi looking at him, so he asked, "Is there anything else?" ”

Procurator Gao read the case file yesterday afternoon, and always felt that there were some problems with this case, but before he had time to think about it, he received a notice that Fang Yi wanted to communicate the case, followed by a meeting in the court, and he never had the time to carefully analyze the case.

What Fang Yi said today happened to be the problem he thought of yesterday, now it's okay, he has to save his brain cells, but what Fang Yi just said he always feels that it is still a little bit worse and not complete.

"And." After speaking, Fang Yi turned the lawyer's opinion in his hand to the back page and continued:

"2. Infringement of the unit's right to use public funds is a necessary element of the crime of misappropriation of public funds, and the conduct of the defendant Liu Mengge in this case did not infringe on the hospital's right to use public funds, and does not constitute the crime of misappropriation of public funds.

The essence of the infringement of the right of use in the sense of the Criminal Law is that the act of the perpetrator makes the right holder unable to achieve the expected effect of using the property, resulting in the frustration of the right holder's purpose of using the property.

The crime of misappropriation of public funds violates the right to use public funds by giving public funds that should always be used for public purposes to personal use, making it impossible for units to effectively exercise their ownership powers, and transforming the purpose of public funds into private use of public funds, that is, embezzling public funds "for personal use".

In order to clarify the external manifestations of infringement of the right to use public funds, the Interpretation of the Standing Committee of the National People's Congress on Article 384, Paragraph 1 of the Criminal Law of the People's Republic of China, and the Interpretation of the Supreme People's Court on Issues Concerning the Determination of the Misappropriation of Public Funds for Personal Use have specific provisions on 'personal use'.

In this case, when the county hospital's RMB 1.6 million drug and medical device funds were transferred outward, the normal purpose of use was to pay off the hospital's debts and eliminate the creditor's rights and debts between the hospital and the supplier arising from the sale and purchase of drugs and medical devices.

Although the amount of money payable by the county hospital to the supplier was formally transferred to the defendant Liu Mengge's husband's company due to the defendant Liu Mengge's conduct, the intervention of the defendant husband Tong Zhizheng's company's bank acceptance draft, and the process of transferring it to the supplier through the endorsement of the county hospital, also achieved the effect of eliminating the creditor's rights and debts relationship between the county hospital and the supplier, and played a role in replacing the hospital's drug and medical device funds for public use, that is to say, the county hospital's purpose of exercising the right to use public funds was not frustrated.

In addition, as far as the role of repaying the debts of the county hospital is concerned, the endorsement of the bank acceptance draft of the defendant Liu Mengge's husband, Tong Zhizheng, to the supplier of the county hospital is exactly the same as the payment of the same amount of cash or bank transfer cheque by the defendant Liu Mengge's husband Tong Zhizheng.

Therefore, in the process of obtaining the consent of the supplier in advance when paying for the medicine, the defendant Liu Mengge endorsed and transferred the real bank acceptance draft to the county hospital for the payment of the medicine, and then asked the finance department to issue a transfer check for the same amount to her husband's company, the hospital as the payer to pay the drug payment was a one-way payment or an act of paying off debts, and the defendant Liu Mengge delivered the transfer check or the bank acceptance draft of the same amount to the supplier of the county hospital. The end result is the settlement of the hospital's drug payment or the elimination of the debt, and the hospital's public funds will not be damaged or bear any risk due to the conversion of this payment method.

Therefore, we believe that Liu Mengge's behavior did not infringe on the right to use the public funds of the county hospital, and his behavior was only a conversion of payment methods, and only affected the time limit for the county hospital supplier to realize the payment specified in the acceptance bill.

3. The possibility of restitution is a prerequisite for the establishment of the crime of embezzlement. The crime of embezzlement of public funds is an act of a state functionary taking advantage of his position to embezzle public funds for personal use.

The perpetrator infringes upon the unit's interests in public property, including the right of possession and the right to proceed, with the right of use as the core.

Although all three of these rights and interests are attributable to the power of ownership, the offence does not fundamentally shake the full ownership of public property. There is an essential difference between the crime of embezzlement of public funds, which is "embezzled and returned," and the crime of embezzlement.

Subjectively, the perpetrator has the intention of temporary use or temporary possession, and is ready to return it in the future after a certain period of use. The intention of restitution is very clear, and the subjective intention of "preparing to return" must run through the whole process of the act, and if there is an intention to permanently possess or embezzle later, even if there is only an intention to misappropriate at the beginning of the act, criminal liability should be investigated for the crime of embezzlement.

Objectively, if the crime of embezzlement of public funds is established, there is also the possibility of the misappropriation of public funds. The Criminal Law stipulates that heavier penalties are imposed on those who have embezzled a huge amount of money and do not return it, with the intention of urging and encouraging the perpetrators of the crime of embezzlement of public funds to actively return public funds and minimize the loss of public property. Even if, for objective reasons, it is in fact impossible to make restitution after misappropriation, there should be a possibility of restitution at the time the misappropriation was committed.

In this case, the purpose of the county hospital's account was to pay the payable and achieve the purpose of settling the debt, which was the process of the outward flow of the county hospital's funds, and in fact the county hospital's debt was indeed repaid.

Therefore, there is objectively no need or possibility for the return of the money. Although the defendant Liu Mengge took advantage of his position to change the direction of the flow of funds, his act of replacing the same amount of other forms of funds with other forms of funds to play the role of paying off debts could not subjectively have the intention of temporarily using the money and returning the money to the hospital in the future, nor did he have the intention of embezzling the hospital's drug money. ”

The reason why Fang Yi brought up the crime of corruption on the third point was to prevent the procurator from relying on the crime of embezzlement. Of course, if the high prosecutor really brings up the crime of embezzlement, he also has a plan to deal with it.

To sum up, the main object of embezzlement protected by the Criminal Law is the owner's right to use and control public funds and the security of public funds.

In this case, the defendant Liu Mengge took advantage of his position to facilitate the repayment of the debts of the county hospital, and decided to change the payment method of public funds without authorization out of the motive of facilitating the capital turnover of the company under the name of her husband Tong Zhizheng, and his conduct did not have a substantial impact on the county hospital's right to control and use public funds, nor did it cause the public funds to face the risk of loss, and did not infringe on the object protected by the crime of misappropriation of public funds.

We believe that the defendant Liu Mengge violated the relevant financial discipline by issuing bills, endorsing and other bills without having a real transaction relationship and a creditor's rights and debts relationship. However, this act does not meet the essence and constitutive elements of the crime of misappropriation of public funds, so the defendant should not constitute the crime of misappropriation of public funds. After Fang Yi finished speaking, he looked at Inspector Gao. (End of chapter)