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First Group of Model Cases regarding Judicial Protection of Private Enterprises Published by the Supreme People's Procuratorate [Effective]
最高人民检察院发布首批涉民营企业司法保护典型案例 [现行有效]
【法宝引证码】

First Group of Model Cases regarding Judicial Protection of Private Enterprises Published by the Supreme People's Procuratorate 

最高人民检察院发布首批涉民营企业司法保护典型案例

(January 17, 2019) (2019年1月17日)

Case regarding Duty-related Misappropriation by Huang and Duan 黄某、段某职务侵占案
―Investigating and handling crimes of duty-related misappropriation committed by enterprise employees and legally protecting the property rights of private enterprises ——查办企业从业人员职务侵占犯罪,依法保护民营企业财产权
I. Basic Facts   一、基本案情
Huang was the former vice-general manager of Fujian A Shoes Co., Ltd. (hereinafter referred to as “A Company”) and Duan was the former manager of the Purchase Department of the Company. Since both of them were suspected of being guilty of duty-related misappropriation, on January 16, 2018, they were detained by the Fengze Branch of the Public Security Bureau of Quanzhou City, Fujian Province (hereinafter referred to as the “Fengze Branch”) as criminals and on February 2 of the same year, the Fengze Branch altered the compulsory measure and granted bail to them. 黄某系福建省A鞋业有限公司(以下简称“A公司”)原副总经理,段某系A公司原采购部经理,二人因涉嫌职务侵占罪于2018年1月6日被泉州市公安局丰泽分局刑事拘留,同年2月2日被变更强制措施取保候审。
In June 2017, A Company accepted a commission made by B Shoes and Clothing Co., Ltd. (hereinafter referred to as “B Company”) to process and produce a batch of shoes with the shoe materials, Zhuba leather (pigskin suede leather), supplied by B Company. After the processing was complete, some raw materials Zhuba leather were remaining. In collusion with Duan and in the name of returning such raw materials Zhuba leather to B Company, Huang prepared a made-up Release Permit for the Delivery of Articles, transported the remaining over 10,000 chi (about 3,333 m) of Zhuba leather to C Shoe Materials Trading Co., Ltd. (hereinafter referred to as “C Company”) in Jinjiang City for deposit and the other 7,000 chi (about 2,333 m) of Zhuba leather was returned to B Company. In December 2017, B Company and A Company signed another footwear processing contract and both parties agreed on that the raw materials should be purchased by A Company. In collusion with Duan, Huang sold the Zhuba leather deposited in C Company back to A Compnay in the name of a raw materials supplier and obtained the illicit money of CNY67,000. Afterwards, such money was possessed by Huang and Duan obtained no illicit money. On January 6, 2018, Zhu, legal representative of A Company, reported a case to the Fengze Branch. 2017年6月,A公司受B鞋服有限公司(以下简称“B公司”)委托,由B公司提供制鞋原料猪巴革加工生产一批鞋子。加工完成后,剩余部分原料猪巴革。黄某伙同段某,以退还B公司的名义,制作虚构的《物品出厂放行单》,将剩余原料中的1万余尺猪巴革运至晋江市C鞋材贸易有限公司(以下简称“C公司”)寄存,7000余尺退还B公司。2017年12月,B公司与A公司再次签订一份鞋业加工合同,双方约定原材料由A公司自行采购。黄某伙同段某借用供料商的名义将寄存于C公司的猪巴革返卖给A公司,获得赃款6.7万元。后该笔赃款被黄某占有,段某未分得赃款。A公司法定代表人朱某于2018年1月6日向福建省泉州市公安局丰泽分局报案。
On May 22, 2018, the Fengze Branch transferred the case to the People's Procuratorate of Fengze District, Quanzhou City for review and prosecution on the ground that Huang and Duan were guilty of duty-related misappropriation. After the case was returned for supplementary investigation twice, the procuratorial organ found the fact that Huang and Duan misappropriated A Company's raw materials Zhuba leather, and identified the quantity of Zhuba leather misappropriated. 泉州市公安局丰泽分局于2018年5月22日将黄某、段某以职务侵占罪向泉州市丰泽区人民检察院移送审查起诉。其间经检察机关两次退回补充侦查,查清了黄某、段某二人侵占A公司猪巴革原料事实及数量。
II. Handling Opinions   二、处理意见
In the handling of this case, in one view, the Zhuba leather misappropriated by Huang and other person was processing raw material provided by B Company and it was not owned by A Company, which was not the component of “property of an entity” in the crime of duty-related misappropriation. In another view, due to its contractual relationship with B Company, A Company conducted management and processing of Zhuba leather. Huang and other person's misappropriation of this batch of Zhuba leather would result in A Company's payment of the corresponding price to B Company, which still infringed upon A Company's property right in essence and constituted a crime of duty-related misappropriation. The People's Procuratorate of Fengze District, Quanzhou City held upon research that “properties of an entity” in the crime of duty-related misappropriation included properties that were managed or used by the entity. As employees of A Company, defendants Huang and Duan illegally possessed properties under the management of A Company by taking advantage of their powers, which damaged A Company's lawful rights and interests. With a large quantity of properties involved, they should be subject to criminal liability for the crime of duty-related misappropriation. After being captured, Huang and Duan could truthfully confess to their crimes and returned the illicit money to A Company in full amount and the system for imposing lenient punishments on those confessing to their crimes and accepting punishments should be applied according to the law. On October 9, 2018, the People's Procuratorate of Fengze District instituted a public prosecution against Huang and Duan for the crime of duty-related misappropriation. On November 15, 2018, the People's Court of Fengze District, Quanzhou City entered a judgment of first instance, in which the sentencing proposal of the procuratorial organ was adopted, Huang was sentenced to detention of six months with suspended execution of one year for being guilty of duty-related misappropriation, and Duan was sentenced to detention of five months with suspended execution of six months for being guilty of duty-related misappropriation. 本案办理过程中,一种观点认为黄某等人侵占的猪巴革,系B公司提供的加工原料,不属于A公司所有,不符合职务侵占罪“本单位财物”的构成要件。另一种观点认为,A公司因与B公司的合同关系对猪巴革实施管理、加工,黄某等人侵占该批猪巴革将导致A公司对B公司退赔相应价款,实质上仍然侵犯了A公司财产权,构成职务侵占罪。泉州市丰泽区人民检察院经研究认为,职务侵占罪“本单位财物”包括单位管理、使用中的财物,被告人黄某、段某,身为公司工作人员,利用职务上的便利,将A公司管理的财物非法占为己有,侵害了A公司的合法权益,数额较大,应当以职务侵占罪追究其刑事责任。黄某、段某归案后能如实供述自己的罪行,向公司全额退还违法所得,依法适用认罪认罚从宽制度,于2018年10月9日以职务侵占罪对黄某、段某提起公诉。泉州市丰泽区人民法院于2018年11月15日作出一审判决,采纳了检察机关的量刑建议,以黄某犯职务侵占罪,判处拘役六个月,缓刑一年,以段某犯职务侵占罪,判处拘役五个月,缓刑六个月。
The People's Procuratorate of Fengze District, Quanzhou City also issued a procuratorial proposal for loopholes in A Company's system for warehouse and personnel management. Upon receipt of the procuratorial proposal, A Company attached great importance to such procuratorial proposal and has prepared new system for warehouse inbound and outbound management, system for the operation of the accounting department and the purchase department, and system for regular inspection and monthly report, and invited legal experts to give instructions to administrative staff members of the Company on a regular basis so as to stay vigilant and put an end to the occurrence of relevant cases. 泉州市丰泽区人民检察院对办案发现的A公司仓库和人员管理制度漏洞提出了检察建议,A公司收到检察建议后十分重视,目前已按建议制定了新的仓库出入库管理制度,财务部、采购部运作制度,定期检查和月报制度,并且定期邀请法律人士给公司管理人员上课,警钟长鸣,杜绝相关案件的再次发生。
III. Guiding Significance   三、指导意义
1. In practice, in the identification of “properties of an entity” in the crime of duty-related misappropriation, there have been such dispute as whether the properties are “owned” or “held” by the entity. From the perspective of infringement upon legal rights and interests, regardless of infringement upon the property “owned” or “held” by the entity, it is infringement upon the entity's property right in essence and a uniform evaluation may be made on the subjective and objective behavioral characteristics and degree of social harmfulness. With reference to the provisions on “public property” in paragraph 2 of Article 91 of the Criminal Law, the property that is managed, used, or transported by a non-public company or enterprise should be treated as property of the company or enterprise. The principle of consistent prosecution for the crime of duty-related misappropriation and the crime of corruption should be followed for purposes of powerfully deferring duty-related misappropriation, equally protecting the property rights of enterprises of various ownerships, and effectively maintaining the normal production and operation activities of private enterprises. 1.实践中,对职务侵占罪“本单位财物”的认定一直以来存在是单位“所有”还是“持有”的争议。从侵害法益看,无论侵占本单位“所有”还是“持有”财物,实质上均侵犯了单位财产权,对其主客观行为特征和社会危害性程度均可作统一评价。参照刑法九十一条第二款对“公共财产”的规定,对非公有制公司、企业管理、使用、运输中的财物应当以本单位财物论,对职务侵占罪和贪污罪掌握一致的追诉原则,以有力震慑职务侵占行为,对不同所有制企业财产权平等保护,切实维护民营企业正常生产经营活动。
2. In the legal punishments of crimes of infringement upon enterprises' rights and interests, importance should be attached to enterprises' demands for payment of compensation, the implementation of payment of compensation should be verified, and private enterprises should be given assistance in recovering economic losses. 2.在依法惩处侵害企业权益犯罪的同时,应当重视企业退赔需求,核实退赔落实情况,帮助民营企业挽回经济损失。
3. Attention should be paid to the functional roles of procuratorial proposals, and private enterprises should be promoted to strengthen prevention and withstanding of risks and assisted in enhancing their capacities of safety precautions. 3.要注重发挥检察建议的功能作用,促进民营企业加强防范、抵御风险、化解隐患,帮助民营企业提高安全防范能力。
Case regarding Refusal to Pay Labor Remunerations by Shanghai A International Trade Co., Ltd. and Liu 上海A国际贸易有限公司、刘某拒不支付劳动报酬案
―Adhering to the integral combination of legal protection of laborers' lawful rights and interests and promotion of private enterprises' lawful operation in the case-handling ——在办案中坚持依法保护劳动者合法权益与促进民营企业守法经营有机结合
I. Basic Facts   一、基本案情
Liu was the shareholder and actual controller of the entity involved, Shanghai A International Trade Co., Ltd. (hereinafter referred to as “A Company”). Suspected of being guilty of refusal to pay labor remunerations, Liu was subject to criminal detention by the Yangpu Branch of the Public Security Bureau of Shanghai Municipality on March 12, 2018. On March 14 of the same year, the compulsory measure was altered and Liu was granted bail. 涉案单位上海A国际贸易有限公司(以下简称“A公司”),刘某系A公司股东和实际控制人,因涉嫌拒不支付劳动报酬罪,于2018年3月12日被上海市公安局杨浦分局刑事拘留,同年3月14日被变更强制措施取保候审。
...... A公司是一家经营跨境零售业务的民营企业。2016年12月至2017年3月间,A公司拖欠员工工资。经公司注册地上海市宝山区劳动人事争议仲裁委员会仲裁,A公司应当支付12名员工劳动报酬共计人民币20余万元,刘某拒不执行仲裁决定。公司实际经营地杨浦区人力资源和社会保障局发布“行政执法公告”责令支付,刘某在指定期限内仍不支付。刘某被公安机关刑事拘留后,其委托代理律师将拖欠的劳动报酬全额支付给12名员工。
 ......

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