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Notice by the Supreme People's Procuratorate of Issuing the Second Group of Guiding Cases | | 最高人民检察院关于印发第二批指导性案例的通知 |
| (No.5 [2012] of the Supreme People's Procuratorate) | | （高检发研字[2012]5号） |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the military procuratorates; and the People's Procuratorate of Xinjiang Construction and Production Corps: | | 各省、自治区、直辖市人民检察院，军事检察院，新疆生产建设兵团人民检察院： |
| As deliberated and decided at the 81st Session of the Eleventh Procuratorial Committee of the Supreme People's Procuratorate on October 31, 2012, the following five cases, including People v. Cui for dereliction of duty of environmental supervision, People v. Chen, et al. for abuse of power, People v. Luo A, et al. for abuse of power, People v. Hu et al. for practicing favoritism, making falsification, and failing to transfer a criminal case, and People v. Yang for neglecting duties, bending the law for personal gains, and accepting bribes, are hereby issued to you for reference purposes. | | 经2012年10月31日最高人民检察院第十一届检察委员会第八十一次会议审议决定，现将崔某环境监管失职案、陈某等滥用职权案、罗甲等滥用职权案、胡某等徇私舞弊不移交刑事案件案和杨某玩忽职守、徇私枉法、受贿案等五个案例印发你们，供参考。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| November 15, 2012 | | 2012年11月15日 |
| People v. Cui for dereliction of duty of environmental supervision | | 崔某环境监管失职案 |
| (Guiding Case No. 4 of the Supreme People's Procuratorate) | | （检例第4号） |
| [Keywords] | | 【关键词】 |
| Subject of a crime of malfeasance in office, staff members of state-owned public institutions, crime of environmental supervision malfeasance | | 渎职罪主体 国有事业单位工作人员 环境监管失职罪 |
| [Key Points] | | 【要旨】 |
| In practice, some state-owned companies, enterprises and public institutions, as legally authorized, engage in the specific administration of market economy and social life, with certain authority to administer public and social affairs. The staff members of those companies, enterprises, and public institutions who actually exercise the state's administrative power satisfy the requirements for the subject of a crime of malfeasance in office. Where any conduct of malfeasance in office of them is criminally punishable, the offender should be held criminally liable in accordance with the provisions of the Criminal Law regarding the crime of malfeasance in office. | | 实践中，一些国有公司、企业和事业单位经合法授权从事具体的管理市场经济和社会生活的工作，拥有一定管理公共事务和社会事务的职权，这些实际行使国家行政管理职权的公司、企业和事业单位工作人员，符合渎职罪主体要求；对其实施渎职行为构成犯罪的，应当依照刑法关于渎职罪的规定追究刑事责任。 |
| [Relevant Legislation] | | 【相关立法】 |
| Article 408 of the Criminal Law of the People's Republic of China and the Interpretation by the Standing Committee of the National People's Congress of Issues Concerning the Subject of a Crime of Malfeasance in Office in the Application of Chapter IX of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第四百零八条，全国人民代表大会常务委员会《关于＜中华人民共和国刑法＞第九章渎职罪主体适用问题的解释》。 |
| [Basic Facts] | | 【基本案情】 |
| Defendant Cui, male, born in 1960, former chief of the 2nd group of the environmental supervision division for drinking water source protection areas, Yancheng City, Jiangsu Province. | | 被告人崔某，男，1960年出生，原系江苏省盐城市饮用水源保护区环境监察支队二大队大队长。 |
| Biaoxin Chemical Engineering Co., Ltd. in Yancheng City, Jiangsu Province (hereinafter referred to as “Biaoxin Company”) is located near the upstream of Mangshe River, which is a source of drinking water in a level-2 drinking water source protection area of the city. According to the relevant laws, regulations, and documents of the state, city, and district, Biaoxin Company is a major pollution source subject to “zero discharge of pollutants.” In May 2005, with the approval of the Bureau of Environmental Protection of Yancheng City, Jiangsu Province, Biaoxin Company started the construction of a project with an annual output of 500 tons of chloroetherketone, and this project passed final inspection in August 2004. In November 2005, without approval, Biaoxin Company concurrently produced climbazole in the workshops of chloroetherketone. In September 2006, the construction of special workshops for the production of climbazole was completed, including 11 production reaction kettles. The waste water generated in the production process of chloroetherketone includes potassium salt, mother liquid, acid waste water, indirect cooling water, and sanitary waste. According to the requirements of the final inspection report, mother liquid should be sold, potassium salt, acid waste water, and indirect cooling water should be recycled after being neutralized and adsorbed (potassium salt may also be collected and then sold to qualified entities). However, since starting the production, Biaoxin Company had never used any technical treatment facilities related to pollutant discharge. Except some potassium salt waste (over 50 tons in total) sold to Funing Auxiliary Reagent Factory from 2006 to 2007, the potassium salt waste and other wastes generated in the production process by Biaoxin Company were directly discharged to the rivers north or east of the factory, causing a serious incident of urban drinking water source pollution in Yancheng City in February 2009. The Chengxi Water Plant and Yuehe Water Plant in Yancheng City suffered from severe pollution, and phenolic compounds in the produced running water severely exceeded the standard. The supply of drinking water for almost 200,000 residents of Yancheng City and the water supply for some entities have been interrupted for 66 hours and 40 minutes, which caused direct economic loss of 5.43 million yuan and had egregious impacts on society. | | 江苏省盐城市标新化工有限公司（以下简称“标新公司”）位于该市二级饮用水保护区内的饮用水取水河蟒蛇河上游。根据国家、市、区的相关法律法规文件规定，标新公司为重点污染源，系“零排污”企业。标新公司于2002年5月经过江苏省盐城市环保局审批建设年产500吨氯代醚酮项目，2004年8月通过验收。2005年11月，标新公司未经批准在原有氯代醚酮生产车间套产甘宝素。2006年9月建成甘宝素生产专用车间，含11台生产反应釜。氯代醚酮的生产过程中所产生的废水有钾盐水、母液、酸性废水、间接冷却水及生活污水。根据验收报告的要求，母液应外售，钾盐水、酸性废水、间接冷却水均应经过中和、吸附后回用（钾盐水也可收集后出售给有资质的单位）。但标新公司自生产以来，从未使用有关排污的技术处理设施。除在2006年至2007年部分钾盐废水（共50吨左右）外售至阜宁助剂厂外，标新公司生产产生的钾盐废水及其他废水直接排放至厂区北侧或者东侧的河流中，导致2009年2月发生盐城市区饮用水源严重污染事件。盐城市城西水厂、越河水厂水源遭受严重污染，所生产的自来水中酚类物质严重超标，近20万盐城市居民生活饮用水和部分单位供水被迫中断66小时40分钟，造成直接经济损失543万余元，并在社会上造成恶劣影响。 |
| The environmental supervision division for drinking water source protection areas under the Bureau of Environmental Protection of Yancheng City was responsible for the environmental protection and pollution prevention and control in the city's drinking water source protection areas. Located in a level-2 drinking water source protection area, Biaoxin Company was under the jurisdiction of the 2nd group of this division. As the chief of the 2nd group, defendant Cui was directly responsible for leading the environmental protection supervision of Biaoxin Company. Cui failed to diligently perform his duty of environmental protection supervision, and from 2006 to 2008, accepted money and property in small amounts from Hu, the legal representative of Biaoxin Company, on many occasions. In routine inspections, Cui found many times that Biaoxin Company discharged cooling water and waste water, but did not require Biaoxin Company to provide documents such as journals for mother liquid, contracts and invoices. Instead, he only filled out the on-site supervision records without reporting Biaoxin Company's illegal discharge of pollutants to the environmental supervision division for drinking water source protection areas in Yancheng City. In December 6, 2008, the environmental supervision division for drinking water source protection areas in Yancheng City launched an enforcement campaign against major chemical enterprises within the protection areas, and issued a notice of overhaul to Biaoxin Company. However, Cui failed to arrange for supervisors of the 2nd group to track, inspect, and oversee the overhaul of Biaoxin Company. On February 18, 2009, when Cui inspected Biaoxin Company, he only filled out an on-site supervision record in the office of Biaoxin Company, without conducting any on-site inspection on discharge of pollutants, and failed to discover and prevent in a timely manner Biaoxin Company's discharge of volumes of waste liquid into rivers outside the factory, causing severe contamination of drinking water sources in Yancheng City. After the water pollution incident occurred, in an effort to conceal his severe irresponsibility, on February 21, 2009, Cui forged two copies of supervision records dated December 10, 2008, and February 16, 2009, to evade investigation by the appropriate authorities. | | 盐城市环保局饮用水源保护区环境监察支队负责盐城市区饮用水源保护区的环境保护、污染防治工作，标新公司位于市饮用水源二级保护区范围内，属该支队二大队管辖。被告人崔某作为二大队大队长，对标新公司环境保护监察工作负有直接领导责任。崔某不认真履行环境保护监管职责，并于2006年到2008年多次收受标新公司法定代表人胡某小额财物。崔某在日常检查中多次发现标新公司有冷却水和废水外排行为，但未按规定要求标新公司提供母液台账、合同、发票等材料，只是填写现场监察记录，也未向盐城市饮用水源保护区环境监察支队汇报标新公司违法排污情况。2008年12月6日，盐城市饮用水源保护区环境监察支队对保护区内重点化工企业进行专项整治活动，并对标新公司发出整改通知，但崔某未组织二大队监察人员对标新公司进行跟踪检查，监督标新公司整改。直至2009年2月18日，崔某对标新公司进行检查时，只在该公司办公室填写了1份现场监察记录，未对排污情况进行现场检查，没有能及时发现和阻止标新公司向厂区外河流排放大量废液，以致发生盐城市饮用水源严重污染。在水污染事件发生后，崔某为掩盖其工作严重不负责任，于2009年2月21日伪造了日期为2008年12月10日和2009年2月16日两份虚假监察记录，以逃避有关部门的查处。 |
| [Proceedings] | | 【诉讼过程】 |
| On March 14, 2009, the People's Procuratorate of Funing County, Yancheng City, Jiangsu Province officially opened criminal investigation against Cui on suspicion of environmental supervision malfeasance, and detained him on the same day. He was arrested on March 27. On May 13, after the close of investigation, the case was transferred for prosecution. On June 26, 2009, the People's Procuratorate of Funing County, Yancheng City, Jiangsu Province instituted a public prosecution against Cui for the crime of environmental supervision malfeasance. On December 16, 2009, the People's Court of Funing County issued a sentence, holding that: Cui, as a state functionary responsible for supervising environmental protection, was severely irresponsible in performing his duty of environmental supervision, which caused the occurrence of a major environmental pollution incident and heavy loss to public and private property; and Cui's acts constituted the crime of environmental supervision malfeasance. In accordance with Article 408 of the Criminal Law of the People's Republic of China, the court sentenced Cui to imprisonment of two years for the crime of environmental supervision malfeasance. After the sentence was pronounced, Cui filed an appeal on the grounds that he only had the duty of inspection, rather than the duty of supervision, and therefore did not satisfy the requirements for the subject of a crime of environmental supervision malfeasance. The Intermediate People's Court of Yancheng City held that: As a staff member of a public institution of the state, Cui was severely irresponsible in the process of performing his duty of environmental supervision on behalf of a state agency as authorized by the state agency, which caused a major environmental pollution incident and heavy loss to public and private property; and Cui's acts constituted the crime of environmental supervision malfeasance. The environmental supervision division for drinking water source protection areas in Yancheng City where Cui served was a state-owned public institution founded by the people's government of Yancheng City, and exercised the authority of environmental supervision on behalf of a state agency as authorized by the state agency. The original sentence failed to cite the relevant provision of the Interpretation by the Standing Committee of the National People's Congress of Issues Concerning the Subject of a Crime of Malfeasance in Office in the Application of Chapter IX of the Criminal Law of the People's Republic of China, and directly determined that Cui was a state official, which was improper and should be corrected. In the original sentence, the facts of the crime committed by Cui were clear, the charge was accurate, the sentencing was appropriate, and the trial procedure was legal. On January 21, 2010, the Intermediate People's Court of Yancheng City issued a final ruling to reject the appeal and maintain the original sentence. | | 2009年3月14日，崔某因涉嫌环境监管失职罪由江苏省盐城市阜宁县人民检察院立案侦查，同日被刑事拘留，3月27日被逮捕，5月13日侦查终结移送审查起诉。2009年6月26日，江苏省盐城市阜宁县人民检察院以被告人崔某犯环境监管失职罪向阜宁县人民法院提起公诉。2009年12月16日，阜宁县人民法院作出一审判决，认为被告人崔某作为负有环境保护监督管理职责的国家机关工作人员，在履行环境监管职责过程中，严重不负责任，导致发生重大环境污染事故，致使公私财产遭受重大损失，其行为构成环境监管失职罪；依照《中华人民共和国刑法》第四百零八条的规定，判决崔某犯环境监管失职罪，判处有期徒刑二年。一审判决后，崔某以自己对标新公司只具有督查的职责，不具有监管的职责，不符合环境监管失职罪的主体要求等为由提出上诉。盐城市中级人民法院认为，崔某身为国有事业单位的工作人员，在受国家机关的委托代表国家机关履行环境监督管理职责过程中，严重不负责任，导致发生重大环境污染事故，致使公私财产遭受重大损失，其行为构成环境监管失职罪。崔某所在的盐城市饮用水源保护区环境监察支队为国有事业单位，由盐城市人民政府设立，其系受国家机关委托代表国家机关行使环境监管职权，原判决未引用全国人民代表大会常务委员会《关于＜中华人民共和国刑法＞第九章渎职罪主体适用问题的解释》的相关规定，直接认定崔某系国家机关工作人员不当，予以纠正；原判认定崔某犯罪事实清楚，定性正确，量刑恰当，审判程序合法。2010年1月21日，盐城市中级人民法院二审终审裁定，驳回上诉，维持原判。 |
| People v. Chen, Lin, and Li A for abuse of power | | 陈某、林某、李甲滥用职权案 |
| (Guiding Case No. 5 of the Supreme People's Procuratorate) | | （检例第5号） |
| [Keywords] | | 【关键词】 |
| Subject of a crime of malfeasance in office, staff members of basic village organizations, crime of abuse of power | | 渎职罪主体 村基层组织人员 滥用职权罪 |
| [Key Points] | | 【要旨】 |
| With the gradual deepening and advancement of China's urban construction and the construction of socialist countryside, basic organizations such as villagers' committees and residents' committees are playing an increasingly important role in assisting people's governments in administering the society. In practice, where staff members of basic organizations, such as villagers' committees and residents' committees, who assist people's governments in public administration abuse power or neglect duty, if criminally punishable, they shall be held criminally liable according to the provisions the Criminal Law regarding a crime of malfeasance in office. | | 随着我国城镇建设和社会主义新农村建设逐步深入推进，村民委员会、居民委员会等基层组织协助人民政府管理社会发挥越来越重要的作用。实践中，对村民委员会、居民委员会等基层组织人员协助人民政府从事行政管理工作时，滥用职权、玩忽职守构成犯罪的，应当依照刑法关于渎职罪的规定追究刑事责任。 |
| [Relevant Legislation] | | 【相关立法】 |
| Article 397 of the Criminal Law of the People's Republic of China and the Interpretation by the Standing Committee of the National People's Congress of Issues Concerning the Subject of a Crime of Malfeasance in Office in the Application of Chapter IX of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第三百九十七条，全国人民代表大会常务委员会《关于＜中华人民共和国刑法＞第九章渎职罪主体适用问题的解释》。 |
| [Basic Facts] | | 【基本案情】 |
| Defendant Chen, male, born in 1946, former person in charge of the leading group for promoting small town social insurance (“town insurance”) of Situan Town, Fengxian District, Shanghai Municipality. | | 被告人陈某，男，1946年出生，原系上海市奉贤区四团镇推进小城镇社会保险（以下简称“镇保”）工作领导小组办公室负责人。 |
| Defendant Lin, female, born in 1960, former party branch secretary, chairman of the villagers' committee, and person in charge of town insurance work of Yangjiazhai Village, Situan Town, Fengxian District, Shanghai Municipality. | | 被告人林某，女，1960年出生，原系上海市奉贤区四团镇杨家宅村党支部书记、村民委员会主任、村镇保工作负责人。 |
| Defendant Li A (a.k.a. Li B), male, born in 1958, former party branch member, vice chairman of the villagers' committee, and person handling town insurance work of Yangjiazhai Village, Situan Town, Fengxian District, Shanghai Municipality. | | 被告人李甲（曾用名李乙），男，1958年出生，原系上海市奉贤区四团镇杨家宅村党支部委员、村民委员会副主任、村镇保工作经办人。 |
| From January 2004 to June 2006, in conducting work on the employment and social security of farmers on requisitioned collectively owned land, Chen, by taking advantage of his position as the person in charge of the leading group for promoting town insurance in Situan Town, Fengxian District, Shanghai Municipality, and Lin and Li A, by taking advantage of their positions as the person in charge of and the person handling town insurance in Yangjiazhai Village respectively as authorized by the People's Government of Situan Town, Fengxian District, Shanghai Municipality, practiced favoritism and made falsification by means such as inflating the area of requisitioned land, and jointly or separately brought 114 villagers of Yangjiazhai Village, Liangmin Village, and Hengqiao Village who did not satisfy the town insurance requirements into the scope of town insurance, in violation of the relevant provisions, as a result of which the People's Government of Situan Town, Fengxian District paid town insurance premiums of over 6 million yuan in total for these villagers and the Social Insurance Fund Settlement Management Center of Shanghai Municipality (“Municipal Social Insurance Center”) actually disbursed town insurance funds of over 1.78 million yuan for these villagers, with egregious impacts on society. Chen, alone or jointly with others, brought 71 villagers who did not satisfy the town insurance requirements into the scope of town insurance, as a result of which the People's Government of Situan Town paid town insurance premiums of over 4 million yuan in total and the Municipal Social Insurance Center actually disbursed town insurance funds of over 1.14 million yuan in total. Lin, alone or jointly with others, brought 79 villagers who did not satisfy the town insurance requirements into the scope of town insurance, as a result of which the People's Government of Situan Town paid the town insurance premiums of over 4 million yuan in total and the Municipal Social Insurance Center actually disbursed town insurance funds of over 1.24 million yuan. Li A, alone or jointly with others, brought 60 villagers who did not satisfy the town insurance requirements into the scope of town insurance, as a result of which the People's Government of Situan Town paid town insurance premiums of over 3 million yuan in total and the Municipal Social Insurance Center actually disbursed town insurance funds of over 950,000 yuan in total. | | 2004年1月至2006年6月期间，被告人陈某利用担任上海市奉贤区四团镇推进镇保工作领导小组办公室负责人的职务便利，被告人林某、李甲利用受上海市奉贤区四团镇人民政府委托分别担任杨家宅村镇保工作负责人、经办人的职务便利，在从事被征用农民集体所有土地负责农业人员就业和社会保障工作过程中，违反相关规定，采用虚增被征用土地面积等方法徇私舞弊，共同或者单独将杨家宅村、良民村、横桥村114名不符合镇保条件的人员纳入镇保范围，致使奉贤区四团镇人民政府为上述人员缴纳镇保费用共计人民币600余万元、上海市社会保险事业基金结算管理中心（以下简称“市社保中心”）为上述人员实际发放镇保资金共计人民币178万余元，并造成了恶劣的社会影响。其中，被告人陈某共同及单独将71名不符合镇保条件人员纳入镇保范围，致使镇政府缴纳镇保费用共计人民币400余万元、市社保中心实际发放镇保资金共计人民币114万余元；被告人林某共同及单独将79名不符合镇保条件人员纳入镇保范围，致使镇政府缴纳镇保费用共计人民币400余万元、市社保中心实际发放镇保资金共计人民币124万余元；被告人李甲共同及单独将60名不符合镇保条件人员纳入镇保范围，致使镇政府缴纳镇保费用共计人民币300余万元，市社保中心实际发放镇保资金共计人民币95万余元。 |
| [Proceedings] | | 【诉讼过程】 |
On April 15, 2008, the People's Procuratorate of Fengxian District, Shanghai Municipality officially opened criminal investigation against Chen, Lin, and Li on suspicion of abuse of power. Chen was detained on April 15 and arrested on April 29. On April 15, Lin and Li A were granted bail. On June 27, after the close of investigation, the case was transferred for prosecution. On July 28, 2008, the People's Procuratorate of Fengxian District, Shanghai Municipality instituted a public prosecution against Chen, Lin, and Li A for the crime of abuse of power. On December 15, 2008, the People's Court of Fengxian District, Shanghai Municipality issued a sentence, holding that: Chen, as a state official, and Lin and Li, A as staff members in official capacity of an organization that exercised power on behalf of a state agency as authorized by the state agency, who intentionally violated the relevant provisions when they were in charge of or handling the employment and social security of farmers on requisitioned land, alone or jointly brought persons who did not satisfy town insurance requirements into the scope of town insurance without permission, which caused heavy loss to public property and had egregious impacts on society. Their acts violated the Criminal Law and constituted the crime of abuse of power, with the circumstances of practicing favoritism and making falsification for personal gains. The circumstances of the offenses of Chen and Lin were especially serious. After committing the crime, the three defendants truthfully confessed to their crimes before the judicial authorities adopted compulsory measures against them, which was voluntary surrender, and they may be given lighter or mitigated punishments. In accordance with Article 397, paragraph 1 of Article 25, paragraph 1 of Article 67, paragraph 1 of Article 72, and paragraphs 2 and 3 of Article 73 of the Criminal Law of the People's Republic of China, Chen was sentenced to imprisonment of two years for the crime of abuse of power; Lin was sentenced to imprisonment of one year and six months with a probation of one year and six months for the crime of abuse of power; and Li A was sentenced to imprisonment of one year with a probation of one year for the crime of abuse of power. After the sentence was pronounced, Lin filed an appeal. In its final ruling, the No. 1 Intermediate People's Court of Shanghai Municipality rejected the appeal and maintained the original sentence.
．．．．．． | | 2008年4月15日，陈某、林某、李甲因涉嫌滥用职权罪由上海市奉贤区人民检察院立案侦查，陈某于4月15日被刑事拘留，4月29日被逮捕，林某、李甲于4月15日被取保候审，6月27日侦查终结移送审查起诉。2008年7月28日，上海市奉贤区人民检察院以被告人陈某、林某、李甲犯滥用职权罪向奉贤区人民法院提起公诉。2008年12月15日，上海市奉贤区人民法院作出一审判决，认为被告人陈某身为国家机关工作人员，被告人林某、李甲作为在受国家机关委托代表国家机关行使职权的组织中从事公务的人员，在负责或经办被征地人员就业和保障工作过程中，故意违反有关规定，共同或单独擅自将不符合镇保条件的人员纳入镇保范围，致使公共财产遭受重大损失，并造成恶劣社会影响，其行为均已触犯刑法，构成滥用职权罪，且有徇个人私情、私利的徇私舞弊情节。其中被告人陈某、林某情节特别严重。犯罪后，三被告人在尚未被司法机关采取强制措施时，如实供述自己的罪行，属自首，依法可从轻或减轻处罚。依照《中华人民共和国刑法》第三百九十七条，第二十五条第一款，第六十七条第一款，第七十二条第一款，第七十三条第二、三款之规定，判决被告人陈某犯滥用职权罪，判处有期徒刑二年；被告人林某犯滥用职权罪，判处有期徒刑一年六个月，宣告缓刑一年六个月；被告人李甲犯滥用职权罪，判处有期徒刑一年，宣告缓刑一年。一审判决后，被告人林某提出上诉。上海市第一中级人民法院二审终审裁定，驳回上诉，维持原判。
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