"Presiding Judge and Judge: We think ,...... The facts ascertained in the first instance are clear, the evidence is credible and sufficient, the court of first instance accurately characterized the appellant's conduct in this case, and the appellant's conduct constituted the crime of embezzlement, so please reject the appellant's appeal request in accordance with law. Complete. The male prosecutor commented.

"The prosecutor may respond to the defender's arguments." The presiding judge performs his or her duties.

"Okay, presiding judge, with regard to the defense of the defender, we mainly make the following observations:

We believe that the subsidy funds for state household appliances to go to the countryside are state-owned property, and the appellant Lu Wei was entrusted by the state organs to manage the state-owned property and did his duty in the camp, but he took advantage of his position to defraud the state-owned property, and the appellant Lu Wei's conduct constituted the crime of embezzlement. Complete. The inspector responded.

The auditorium was full of people, and in addition to Lu Wei's family members, many people came to observe the hearing, because the procuratorate in this city has filed more than 20 cases with the court in cases like Lu Wei's, and all of them are first-instance verdicts issued before and after Lu Wei's case.

In the appellate case, Lu Wei's case was the first to be tried and had an exemplary effect, so the families of the people involved in the case were very concerned about the verdict of Lu Wei's case.

"The defender may respond to the prosecutor's opinion." As the presiding judge's voice fell, everyone in the audience looked at Cao Yongzheng and Yun Qiao.

"Based on the Prosecutor's defense and response, we issue the following defense opinions:

Although in accordance with the relevant regulations of the General Office of the Provincial People's Government, the outlets participating in the sales of household appliances to the countryside shall sign a power of attorney with the county and township finance departments, but the signing of such a power of attorney does not mean that the sales outlets are entrusted by the local finance department to manage state-owned property, and the specific reasons are as follows:

1. The above entrustment does not mean that the financial department will entrust the administrative authority to review and redeem the subsidy funds for household appliances to the countryside to the sales outlets.

First, the household appliance distribution outlets did not carry out the audit and advance payment of the subsidy funds for household appliances to the countryside in the name of the financial department, and the effect of the audit and advance payment had no impact on the audit of the financial department.

In accordance with the relevant regulations, after receiving the settlement materials of the sales outlets, the township (town) finance office must further verify the relevant documents, identities and purchase information of the purchasing farmers, and review the advance payment of the sales outlets, and then carry out the settlement of subsidy funds.

For materials that do not meet the requirements, the financial sector shall not settle, and the losses incurred shall be borne by the sales outlets.

This provision shows that the examination of sales outlets is only a formal audit, and the subsidies advanced are only intended to be paid, and the substantive review and distribution rights of the subsidy funds for household appliances going to the countryside are still in the hands of the financial department.

Second, in practice, there are clear provisions on the final review and confirmation of subsidy funds for household appliances going to the countryside. If the city clearly stipulates that the final review power lies in the county finance department.

It can be seen that although the state has delegated the pre-audit to the sales outlets of household appliances, the final review and confirmation power has not been delegated.

2. If it is believed that a household appliance seller is a person who is 'entrusted with the management and operation of state-owned property', it will also cause confusion in the identification of its identity.

In accordance with the provisions of the relevant documents, the seller of household appliances not only signs a power of attorney with the financial department, but also signs the "Power of Attorney for the Direct Subsidy Fund for Household Appliances to the Countryside" with the farmer consumers when issuing the subsidy funds, the content is that the farmer consumers have received the subsidy funds from the sales outlets in advance, and now entrust the sales outlets to handle the declaration and receipt of the subsidy funds for household appliances going to the countryside on behalf of the financial department.

Judging from the fact that household appliance sellers are entrusted by both the financial department and the peasant consumers, it shows that the household appliance sales outlets are not personnel entrusted by state organs to manage and operate state-owned property.

To sum up, Lu Wei, as a household appliance dealer, is neither a state functionary, nor a person entrusted by a state organ to manage state-owned property, and he does not have the subject identity elements to constitute the crime of embezzlement. Complete. Cao Yongzheng responded.

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

"We need to keep responding." The prosecutor continued: "In response to the defender's response and defense, we believe that the nature of the appellant's act of examining and advancing the subsidy funds for household appliances to the countryside is an official act or an act of duty arising from entrustment, and the appellant took advantage of this position to embezzle the relevant funds. ”

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

"Yes, a response is needed." After Cao Yongzheng finished speaking, he looked at Yun Qiao.

Yun Qiao signaled to him just now, and she would respond this round.

"In response to the procurator's defense opinions and responses, we believe that what Lu Wei is engaged in is a labor act, not an official act or an act of duty.

The "Minutes of the National Symposium on the Trial of Economic Crime Cases by Courts" mentioned by the defender earlier has relatively clear provisions on the understanding of 'engaging in official business'.

According to the minutes, 'engaging in official business' refers to performing the duties of organization, leadership, supervision, management, etc., on behalf of state organs, state-owned companies, enterprises, public institutions, people's organizations, etc. ’

'Public affairs are mainly manifested in public affairs linked to functions and powers, as well as in the supervision and management of state-owned property. If the functionaries of state organs perform their duties in accordance with the law, and the directors, managers, supervisors, accountants, and cashiers of state-owned companies manage and supervise the activities of state-owned property, they are engaged in official business. Those labor activities and technical service work that do not have the content of authority, such as the work performed by salesmen and conductors, are generally not considered to be official duties'.

In this case, the audit conducted by Lu Wei's home appliance sales outlets was only a formal audit. Moreover, this kind of audit is more of a collection and summary of materials, and its behavior of paying first and then receiving funds is also similar to a kind of handling, and does not have the authority or job content. This kind of audit is essentially a simple labor activity, and does not have the nature of managing state-owned property.

After the sales outlets were entrusted by the financial department to conduct formal review and advance subsidy funds, they obtained the entrustment of farmers to apply for state subsidy funds from the financial department on behalf of the financial department.

It can be seen from this that Lu Wei took advantage of the convenience of his labor services and the convenience of handling the circulation of subsidy funds, and did not have the content of management and operation, so it did not belong to the convenience of his position.

To sum up, although the defendant Lu Wei was entrusted by the finance department to review the identity information and purchase materials of the rural households, and advanced the subsidy funds to the rural households that met the purchase conditions when the rural households purchased household appliances to the countryside, he did not manage and operate the state-owned property based on the entrustment of the financial department.

In the process of selling household appliances to the countryside, Lu Wei falsely claimed and fraudulently received state subsidies for household appliances to the countryside for the purpose of illegal possession, and his conduct met the constitutive characteristics of the crime of fraud. His conduct does not constitute the crime of embezzlement, completed. Yun Qiao said.

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