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Notice by the Supreme People's Procuratorate of Issuing the Twentieth Group of Guiding Cases Published by the Supreme People's Procuratorate [Effective]
最高人民检察院关于印发最高人民检察院第二十批指导性案例的通知 [现行有效]
【法宝引证码】

Notice by the Supreme People's Procuratorate of Issuing the Twentieth Group of Guiding Cases Published by the Supreme People's Procuratorate 

最高人民检察院关于印发最高人民检察院第二十批指导性案例的通知

The people's procuratorates at all levels: 各级人民检察院:
As decided at the 42nd Meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on July 6, 2020, the following four cases (No. 73-76 of the Supreme People's Procuratorate), including a case of taking bribes, privately dividing state-owned assets, and committing embezzlement by Library of A County in Zhejiang Province, Zhao, and Xu, are hereby issued as the twentieth group of guiding cases for reference purposes. 经2020年7月6日最高人民检察院第十三届检察委员会第四十二次会议决定,现将浙江省某县图书馆及赵某、徐某某单位受贿、私分国有资产、贪污案等四件指导性案例(检例第73-76号)作为第二十批指导性案例发布,供参照适用。
Supreme People's Procuratorate 最高人民检察院
July 16, 2020 2020年7月16日
Twentieth Group of Guiding Cases Published by the Supreme People's Procuratorate 最高人民检察院第二十批指导性案例
People v. Library of A County in Zhejiang Province, Zhao, and Xu for taking bribes, privately dividing state-owned assets, and committing embezzlement 浙江省某县图书馆及赵某、徐某某单位受贿、私分国有资产、贪污案
(Case No. 73 of the Supreme People's Procuratorate) (检例第73号)
[Keywords] 【关键词】
crime committed by an entity; supplementary prosecution; transfer of clues 单位犯罪 追加起诉 移送线索
[Key Points] 【要旨】
In the review and prosecution of a case on a duty-related crime, if the people's procuratorate deems that the relevant entity is also involved in a crime, the fact on the crime committed by the entity is clear, and the evidence is irrefutable and sufficient, upon communication with the supervisory organ, the people's procuratorate may institute a public prosecution against the entity according to the law. Where the procuratorial organ identifies any omitted accomplice or criminal fact in the review and prosecution, it shall communicate with the supervisory organ in a timely manner and handle such omitted accomplice or criminal fact according to the law. 人民检察院在对职务犯罪案件审查起诉时,如果认为相关单位亦涉嫌犯罪,且单位犯罪事实清楚、证据确实充分,经与监察机关沟通,可以依法对犯罪单位提起公诉。检察机关在审查起诉中发现遗漏同案犯或犯罪事实的,应当及时与监察机关沟通,依法处理。
[Basic Facts] 【基本案情】
Defendant entity, Library of A County in Zhejiang Province, which is a state-owned public institution with full funding. 被告单位浙江省某县图书馆,全额拨款的国有事业单位。
Defendant, Zhao, male, former chief librarian of the Library. 被告人赵某,男,某县图书馆原馆长。
Defendant, Xu, male, former deputy chief librarian of the Library. 被告人徐某某,男,某县图书馆原副馆长。
(1) Crime of taking bribes by an entity (一)单位受贿罪
From 2012 to 2016, for the purpose of increasing welfare benefits, it was decided upon collective discussions of Zhao, Xu, and other persons that the Library of A County accepted over CNY360,000 in total offered by Liang from A Bookstore, B Company, and Pan from C Book Business Department by means of privately accepting kickbacks in the process of purchasing books and used such fund to issue staff welfare to personnel and pay other expenses of the entity. 2012年至2016年,为提高福利待遇,经赵某、徐某某等人集体讨论决定,某县图书馆通过在书籍采购过程中账外暗中收受回扣的方式,收受A书社梁某某、B公司、C图书经营部潘某某所送人民币共计36万余元,用于发放工作人员福利及支付本单位其他开支。
(2) Crime of privately dividing state-owned assets (二)私分国有资产罪
From 2012 to 2016, the Library of A County fraudulently obtained the financial fund of over CNY630,000 by asking A Bookstore, B Company, and C Book Business Department to falsely issue book invoices, falsely disclosing labor service expenditures, and purchasing library cards at virtual-high prices. 2012年至2016年,某县图书馆通过从A书社、B公司、C图书经营部虚开购书发票、虚列劳务支出、采购价格虚高的借书卡等手段套取财政资金63万余元,经赵某、徐某某等人集体讨论决定,将其中的56万余元以单位名义集体私分给本单位工作人员。
(3) Crime of embezzlement (三)贪污罪
In 2015, by taking advantage of his position as deputy chief librarian of the Library of A County, who took charge of purchase business, defendant Xu fraudulently obtained the financial fund of CNY38,000 by purchasing library cards at virtual-high prices from C Book Business Department and took possession of such fund. 2015年,被告人徐某某利用担任某县图书馆副馆长,分管采购业务的职务之便,通过从C图书经营部采购价格虚高的借书卡的方式,套取财政资金3.8万元归个人所有。
[Procuratorial Work] 【检察工作情况】
(1) The procuratorial organ conducted early intervention to raise recommendations on improving the evidence system and laid a foundation for accurately determining nature of the case. The Supervisory Commission of A County docketed this case for investigation on the ground that Zhao was suspected of embezzlement and taking bribes. Upon early intervention, the People's Procuratorate of A County raised recommendations on improving evidence through review and analysis of the relevant evidentiary materials. On the basis of the recommendations raised by the procuratorial organ, the supervisory organ further collected evidence and improved the evidence system. On September 28, 2018, , the Supervisory Commission of A County concludedthe investigation and transferred the case to the People's Procuratorate of A County for prosecution on the ground that Zhao was suspected of taking bribes by an entity and privately dividing state-owned assets. (一)提前介入提出完善证据体系意见,为案件准确定性奠定基础。某县监察委员会以涉嫌贪污罪、受贿罪对赵某立案调查,县人民检察院提前介入后,通过梳理分析相关证据材料,提出完善证据的意见。根据检察机关意见,监察机关进一步收集证据,完善了证据体系。2018年9月28日,县监察委员会调查终结,以赵某涉嫌单位受贿罪、私分国有资产罪移送县人民检察院起诉。
(2) The procuratorial organ directly instituted a public prosecution against the Library of A County that has not been transferred for prosecution by the supervisory organ on the ground that it committed a crime of taking bribes by an entity. After the Supervisory Commission of A County transferred Zhao for prosecution, the procuratorial organ held upon review that as a state-owned public institution with full funding, the Library of A County privately received kickbacks in various names in economic exchanges and the circumstances were serious. In accordance with the provisions of Article 387 of the Criminal Law, the Library of A County should be subject to criminal liability for taking bribes by an entity, the fact on the crime committed by an entity was clear, and the evidence was irrefutable and sufficient. On November 12, 2018, upon full communication with the supervisory organ, the People's Procuratorate of A County instituted a public prosecution on the grounds that the Library of A County committed a crime of taking bribes by an entity and Zhao committed a crime of taking bribes by an entity and a crime of privately dividing state-owned assets. (二)对监察机关未移送起诉的某县图书馆,直接以单位受贿罪提起公诉。某县监察委员会对赵某移送起诉后,检察机关审查认为,某县图书馆作为全额拨款的国有事业单位,在经济往来中,账外暗中收受各种名义的回扣,情节严重,根据《刑法》第三百八十七条之规定,应当以单位受贿罪追究其刑事责任,且单位犯罪事实清楚,证据确实充分。经与监察机关充分沟通,2018年11月12日,县人民检察院对某县图书馆以单位受贿罪,对赵某以单位受贿罪、私分国有资产罪提起公诉。
(3) In the phase of review and prosecution, the procuratorial organ transferred clues on Xu's alleged crime of embezzlement in a timely manner and prosecuted an omitted accomplice and omitted crimes according to the law. In the review and prosecution of the case involving Zhao, the procuratorial organ held that as deputy chief librarian participating in collective research and taking charging of purchase business, Xu was other directly reponsible person and he should be subject to criminal liability for taking bribes by an entity and privately dividing state-owned assets. In the review of accounts of book sellers, the procuratorial organ discovered that Xu twice assisted the Library of A County in fraudulently obtaining financial funds by exaggerating the prices for producing library cards, but Zhao only stated that he only fraudulently obtained financial fund once and privately divided it. The procuratorial personnel concluded upon analysis that the financial fund of CNY38,000 fraudulently obtained on another occasion was likely to be embezzled by Xu who handled it. Therefore, the procuratorial organ transferred the clues on Xu's alleged crime of embezzlement to the supervisory organ. After the case docketing and investigation, the supervisory organ ascertained the criminal facts that Xu participated in the crime of taking bribes by an entity, privately divided state-owned assets, and committed embezzlement. On November 16, 2018, the Supervisory Commission of A County concludedthe investigation and transferred the case to the People's Procuratorate of A County for prosecution on the ground that Xu was suspected of taking bribes by an entity, privately dividing state-owned assets, and committing embezzlement. On December 27, 2018, the People's Procuratorate of A County instituted a public prosecution on the ground that Xu participated in the crime of taking bribes by an entity, privately divided state-owned assets, and committing embezzlement. (三)审查起诉阶段及时移送徐某某涉嫌贪污犯罪问题线索,依法追诉漏犯漏罪。检察机关对赵某案审查起诉时,认为徐某某作为参与集体研究并具体负责采购业务的副馆长,属于其他直接责任人员,也应以单位受贿罪、私分国有资产罪追究其刑事责任。同时在审查供书商账目时发现,其共有两次帮助某县图书馆以虚增借书卡制作价格方式套取财政资金,但赵某供述只套取一次财政资金用于私分,检察人员分析另一次套取的3.8万元财政资金很有可能被经手该笔资金的徐某某贪污,检察机关遂将徐某某涉嫌贪污犯罪线索移交监察机关。监察机关立案调查后,通过进一步补充证据,查明了徐某某参与单位受贿、私分国有资产以及个人贪污的犯罪事实。2018年11月16日,县监察委员会调查终结,以徐某某涉嫌单位受贿罪、私分国有资产罪、贪污罪移送县人民检察院起诉。2018年12月27日,县人民检察院对徐某某以单位受贿罪、私分国有资产罪、贪污罪提起公诉。
On December 20, 2018, the People's Court of A County imposed a fine of CNY200,000 on the Library of A County for taking bribes by an entity; and sentenced Zhao to a fixed-term imprisonment of one year and two months, in addition to a fine of CNY100,000 for taking bribes by an entity and privately dividing state-owned assets. On January 10, 2019, the People's Court of A County sentenced Xu to a fixed-term imprisonment of one year, in addition to a fine of CNY200,000 for taking bribes by an entity, privately dividing state-owned assets, and committing embezzlement. 2018年12月20日,某县人民法院以单位受贿罪判处某县图书馆罚金人民币二十万元;以单位受贿罪、私分国有资产罪判处赵某有期徒刑一年二个月,并处罚金人民币十万元。2019年1月10日,某县人民法院以单位受贿罪、私分国有资产罪、贪污罪判处徐某某有期徒刑一年,并处罚金人民币二十万元。
[Significance] 【指导意义】
(1) The procuratorial organ may directly initiate supplementary prosecution against a crime committed by an entity. In the review of a case transferred by the supervisory organ for prosecution, the people's procuratorate shall ascertain whether there is any omitted crime and any other person that should be subject to criminal liability. For a case involving a crime committed by an entity, where the supervisory organ only transfers the case for prosecution against the directly responsible person in charge and other directly responsible person, but fails to transfer the case for prosecution against the entity suspected of committing the crime, if the fact is clear and the evidence is irrefutable and sufficient, upon communication with the supervisory organ, the procuratorial organ may directly institute a public prosecution against the entity committing the crime. (一)检察机关对单位犯罪可依法直接追加起诉。人民检察院审查监察机关移送起诉的案件,应当查明有无遗漏罪行和其他应当追究刑事责任的人。对于单位犯罪案件,监察机关只对直接负责的主管人员和其他直接责任人员移送起诉,未移送起诉涉嫌犯罪单位的,如果犯罪事实清楚,证据确实充分,经与监察机关沟通,检察机关对犯罪单位可以依法直接提起公诉。
(2) Where the procuratorial organ discovers any omitted accomplice or criminal fact in the review and prosecution, it shall communicate with the supervisory organ in a timely manner and handle such omitted accomplice or criminal fact according to the law. If the procuratorial organ discovers any omitted duty-related accomplice or criminal fact in the review and prosecution of the case transferred by the supervisory organ for prosecution, it shall communicate with the supervisory organ in a timely manner and handle such omitted accomplice or criminal fact according to the law. If the supervisory organ concludes investigation and transfers the case for prosecution within the time limit for review and prosecution of this case, the criminal fact is clear, and the evidence is irrefutable and sufficient, prosecution may be initiated jointly; and if the supervisory organ fails to conclude investigation and transfer the case for prosecution within the time limit for review and prosecution of this case, or although prosecution has been transferred, the case cannot be concluded in a timely manner due to serious and complicated circumstances or other reasons, prosecution may be initiated separately. (二)检察机关在审查起诉中发现遗漏同案犯或犯罪事实的,应当及时与监察机关沟通,依法处理。检察机关在审查起诉中,如果发现监察机关移送起诉的案件遗漏同案职务犯罪人或犯罪事实的,应当及时与监察机关沟通,依法处理。如果监察机关在本案审查起诉期限内调查终结移送起诉,且犯罪事实清楚,证据确实充分的,可以并案起诉;如果监察机关不能在本案审查起诉期限内调查终结移送起诉,或者虽然移送起诉,但因案情重大复杂等原因不能及时审结的,也可分案起诉。
[Relevant Legislation] 【相关规定】
Article 30, Article 31, paragraph 1 of Article 382, item (1) of paragraph 1 and paragraph 3 of Article 383, Article 387, and paragraph 1 of Article 396 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第三十条,第三十一条,第三百八十二条第一款,第三百八十三条第一款第一项、第三款,第三百八十七条,第三百九十六条第一款
Article 176 of the Criminal Procedure Law of the People's Republic of China 中华人民共和国刑事诉讼法》第一百七十六条
Article 34 of the Supervision Law of the People's Republic of China 中华人民共和国监察法》第三十四条
People v. Li Huabo for embezzlement 李华波贪污案
(Case No. 74 of the Supreme People's Procuratorate) (检例第74号)
[Keywords] 【关键词】
procedures for confiscation of illicit income; appearance of the criminal suspect before the authority; connection of procedures 违法所得没收程序 犯罪嫌疑人到案 程序衔接
[Key Points] 【要旨】
For a case on major duty-related crimes including embezzlement and bribery where the criminal suspect or defendant flees and fails to appear before the auhtority within one year after being wanted, if there is evidence proving the criminal fact and the illicit income or other property involved of the criminal suspect or defendant should be recovered in accordance with the provisions of the Criminal Law, the procedures for confiscation of illicit income should apply according to the law. Where, after the ruling on confiscation of illicit income takes effect, the duty-related criminal suspect at large voluntarily surrenders himself or herself or is arrested and the supervisory organ concludes investigation and transfers the case for prosecution, the procuratorial organ shall handle the case according to the ordinary criminal procedures and conduct effective connection with the former procedures for ruling confiscation. 对于贪污贿赂等重大职务犯罪案件,犯罪嫌疑人、被告人逃匿,在通缉一年后不能到案,如果有证据证明有犯罪事实,依照刑法规定应当追缴其违法所得及其他涉案财产的,应当依法适用违法所得没收程序办理。违法所得没收裁定生效后,在逃的职务犯罪嫌疑人自动投案或者被抓获,监察机关调查终结移送起诉的,检察机关应当依照普通刑事诉讼程序办理,并与原没收裁定程序做好衔接。
[Basic Facts] 【基本案情】
Defendant, Li Huabo, male, former chief of the Economic Construction Section of the Finance Bureau of Poyang County, Shangrao City, Jiangxi Province. 被告人李华波,男,江西省上饶市鄱阳县财政局经济建设股原股长。
During the period from October 2006 to December 2010, by taking advantage of his position as the chief of the Economic Construction Section of the Finance Bureau of Poyang County, responsible for managing the special funds for infrastructure in this County, in collusion with Zhang Qinghua (punished), deputy chief of the Section, Xu Detang (punished), director of the urban credit cooperative under the Rural Credit (Cooperatives) Union of Poyang County, and other persons, Li Huabo defrauded the special funds for infrastructure, CNY94 million in total, granted by the Finance Bureau of Poyang County by fraudulently applying previous approval formalities, privately issuing transfer checks and affixing a fake seal, and preparing fake bank statements. Except the fund that was squandered by Li Huabo and Xu Detang in gambling and partial illicit income shared with other accomplices, the remaining illicit income was possessed by Li Huabo. Li Huabo used over CNY2.4 million in the aforesaid illicit income to undergo the formalities for immigration to Singapore for himself and his family members and bought a house in Singapore; he converted over CNY27 million in the aforesaid illicit income to SGD through Singapore Central RMB Remittance Service Pte, and transferred the aforesaid illicit income to his personal account and that of his wife in United Overseas Bank. Afterwards, Li Huabo and his wife used the SGD fund transferred to their personal accounts to buy houses and make investment. Except SGD1.5 million in project investment, the remaining amount was placed under seal and seized by the Singapore police, over SGD5.4 million in total (over CNY26 million). 2006年10月至2010年12月间,李华波利用担任鄱阳县财政局经济建设股股长管理该县基本建设专项资金的职务便利,伙同该股副股长张庆华(已判刑)、鄱阳县农村信用联社城区信用社主任徐德堂(已判刑)等人,采取套用以往审批手续、私自开具转账支票并加盖假印鉴、制作假银行对账单等手段,骗取鄱阳县财政局基建专项资金共计人民币9400万元。除李华波与徐德堂赌博挥霍及同案犯分得部分赃款外,其余赃款被李华波占有。李华波用上述赃款中的人民币240余万元为其本人及家人办理了移民新加坡的手续及在新加坡购置房产;将上述赃款中的人民币2700余万元通过新加坡中央人民币汇款服务私人有限公司兑换成新加坡元,转入本人及妻子在新加坡大华银行的个人账户内。后李华波夫妇使用转入个人账户内的新加坡元用于购买房产及投资,除用于项目投资的150万新加坡元外,其余均被新加坡警方查封扣押,合计540余万新加坡元(折合人民币约2600余万元)。
[Procuratorial Work] 【检察工作情况】
(1) The procuratorial organ conducted pursuit under international cooperation and instituted non-local criminal prosecution. On January 29, 2011, Li Huabo fled to Singapore. On February 13, 2011, the People's Procuratorate of Poyang County docketed this case for investigation on the ground that Li Huabo was suspected of embezzlement. On February 16, the People's Procuratorate of Shangrao City decided to arrest Li Huabo on the ground that he was suspected of embezzlement. Since China and Singapore do not sign treaties on bilateral extradition and criminal judicial assistance, upon full consultation and communication by the relevant departments, it was decided to carry out international judicial cooperation in a practical manner in accordance with the United Nations Convention against Corruption where the two countries have been approved to join and under the principle of reciprocity in judicial assistance. For the purpose of effectively carrying out the work, the Fugitive Repatriation and Asset Recovery Office of the Anti-corruption Coordination Group under the Central Government has organized and held case coordination meetings for several times and the joint working group consisting of the supervisory organ, the procuratorial organ, the foreign affairs organ, the public security organ, the judicial organ, and the judicial administrative organ as well as local law enforcement department has carried out work in Singapore eight times. Since the supreme procuratorial organs of China and Singapore have been designated by the two countries as central authorities for judicial assistance in the implementation of the United Nations Convention against Corruption, the Supreme People's Procuratorate of China has taken the lead and formed a group to consult with the Singapore side, and prepared a plan for international judicial cooperation in the case involving Li Huabo for mutual cooperation and organization and implementation by steps. (一)国际合作追逃,异地刑事追诉。2011年1月29日,李华波逃往新加坡。2011年2月13日,鄱阳县人民检察院以涉嫌贪污罪对李华波立案侦查,同月16日,上饶市人民检察院以涉嫌贪污罪对李华波决定逮捕。中新两国未签订双边引渡和刑事司法协助条约,经有关部门充分沟通协商,决定依据两国共同批准加入的《联合国反腐败公约》和司法协助互惠原则,务实开展该案的国际司法合作。为有效开展工作,中央追逃办先后多次组织召开案件协调会,由监察、检察、外交、公安、审判和司法行政以及地方执法部门组成联合工作组先后8次赴新加坡开展工作。因中新两国最高检察机关均被本国指定为实施《联合国反腐败公约》司法协助的中央机关,其中6次由最高人民检察院牵头组团与新方进行工作磋商,拟定李华波案国际司法合作方案,相互配合,分步骤组织实施。
On February 23, 2011, the Ministry of Public Security requested the International Criminal Police Organization (“ICPO”) to issue a red notice on Li Huabo and issued an investigation letter to the ICPO of Singapore. In early March 2011, the Singapore police arrested Li Huabo. The court of Singapore afterwards issued a freezing order to freeze the property involved transferred to Singapore by Li Huabo and his wife. In September 2012, the Attorney-General's Chambers of Singapore charged Li Huabo on three crimes of “stealing stolen goods in bad faith.” On August 15, 2013, the court of Singapore entered a judgment of first instance, determined that all charged crimes of Li Huabo were tenable, and gave Li Huabo imprisonment of 15 months. 2011年2月23日,公安部向国际刑警组织请求对李华波发布红色通报,并向新加坡国际刑警发出协查函。2011年3月初,新加坡警方拘捕李华波。随后新加坡法院发出冻结令,冻结李华波夫妇转移到新加坡的涉案财产。2012年9月,新加坡总检察署以三项“不诚实盗取赃物罪”指控李华波。2013年8月15日,新加坡法院一审判决认定对李华波的所有指控罪名成立,判处其15个月监禁。
(2) The procuratorial organ applied special procedures and confiscated illicit income. The criminal fact that Li Huabo embezzled the public fund of CNY94 million was proved by the relevant documentary evidence, testimonies of witnesses, and confessions of the accomplice. The testimonies of witnesses who assisted Li Huabo in handling the transfer and immigration formalities, the photocopies of bank transfer vouchers, the Summary of Facts provided by the Singapore police, the report on the seizure of property issued by the court of Singapore, and other evidence could prove that the property in the name of Li Huabo and his wife that was sealed up, seized, and frozen by the Singapore police was illicit income obtained by Li Huabo from embezzlement. (二)适用特别程序,没收违法所得。李华波贪污公款9400万元人民币的犯罪事实,有相关书证、证人证言及同案犯供述等予以证明。根据帮助李华波办理转账、移民事宜的相关证人证言、银行转账凭证复印件、新加坡警方提供的《事实概述》、新加坡法院签发的扣押财产报告等证据,能够证明被新加坡警方查封、扣押、冻结的李华波夫妇名下财产,属于李华波贪污犯罪违法所得。
Since Li Huabo did not appear before the court in one year after the red notice was released, on March 6, 2013, the People's Procuratorate of Shangrao City filed an application with the Intermediate People's Court of Shangrao City for confiscating Li Huabo's illicit income. On March 3, 2015, the Intermediate People's Court of Shangrao City entered a ruling of first instance and determined that Li Huabo was suspected of committing the crime of major embezzlement and he failed to appear before the authority in one year after he fled to Singapore and was wanted. The evidence presented could prove that the property in the name of Li Huabo and his wife, over SGD5.4 million, that was seized by the Singapore police was illicit income of Li Huabo and should be confiscated according to the law. Since the relevant personnel did not appeal within the statutory period, the ruling on confiscation of illicit income took effect. On June 29, 2016, the Supreme Court of Singapore entered a judgment and returned all property involved, over SGD5.4 million in total, in the name of Li Huabo and his wife that was seized to the Chinese side.
......
 李华波在红色通报发布一年后不能到案,2013年3月6日,上饶市人民检察院向上饶市中级人民法院提出没收李华波违法所得申请。2015年3月3日,上饶市中级人民法院作出一审裁定,认定李华波涉嫌重大贪污犯罪,其逃匿新加坡后被通缉,一年后未能到案。现有证据能够证明,被新加坡警方扣押的李华波夫妇名下财产共计540余万新加坡元,均系李华波的违法所得,依法予以没收。相关人员均未在法定期限内提出上诉,没收裁定生效。2016年6月29日,新加坡高等法院作出判决,将扣押的李华波夫妇名下共计540余万新加坡元涉案财产全部返还中方。
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