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Sun Wei v. Nantong Baichuan Flour Co., Ltd. (dispute over unjust enrichment)
孙卫与南通百川面粉有限公司不当得利纠纷案
【法宝引证码】

Sun Wei v. Nantong Baichuan Flour Co., Ltd. (dispute over unjust enrichment)
(dispute over unjust enrichment)
孙卫与南通百川面粉有限公司不当得利纠纷案
[Key Terms]
criminal judgment ; amount of illicit money ; scope of losses ; standard of proof
[核心术语]
刑事判决;赃款数额;损失范围;证明标准
[Disputed Issues]
Whether the scope of losses to the victim can be determined on the basis of the amount of illicit money as recognized in the criminal judgment?
[争议焦点]
1.能否依据刑事判决认定赃款的数额确定受害人的损失范围?
[Case Summary]
Although the amount of illicit money has been recognized in the criminal judgment, such amount of illicit money is not equivalent to the scope of losses to the victim. Under normal conditions, the scope of direct and indirect losses to a victim caused by a criminal offense is greater than the amount of the illicit money the criminal offender has directly obtained. In the settlement of dispute over compensation for civil losses in a criminal case, the amount of losses to the victim is the basis for determining the amount of compensation other than the amount of illicit money the criminal offender has directly obtained. The scope of losses may not be determined simply on the basis of the amount of illicit money as recognized in the criminal judgment. Besides, the civil standard of proof is comparatively lower than the criminal standard of proof. Therefore, the civil standard of proof should not be replaced by the high criminal standard of proof.
[案例要旨]
刑事判决虽然认定了赃款的数额,但刑事判决认定其所获赃款数额与受害人的损失范围并不等同。因为,一般情况下,犯罪行为给受害人造成直接和间接损失的范围要大于作案人所直接获得的赃款。因而,在处理刑事案件造成的民事损失赔偿纠纷时,赔偿所立足的依据是受害人的损失,而不是作案人所直接获得的赃款。不能简单依据刑事判决认定赃款的数额确定损失范围。此外,民事证明标准一般要低于刑事证明标准。因而,不应以刑事案件的高标准取代民事证明标准。
Sun Wei v. Nantong Baichuan Flour Co., Ltd. (dispute over unjust enrichment) 孙卫与南通百川面粉有限公司不当得利纠纷案
[Judgment Abstract] [裁判摘要]
The amount of illicit money as recognized in the criminal judgment is not equivalent to the scope of losses caused by the criminal offense and the scope of losses cannot be determined simply on the basis of the amount of illicit money as recognized in the criminal judgment. The standard of proof for a criminal case differs from that for a civil case and the civil standard of proof should not be replaced by the higher criminal standard of proof. 刑事判决认定的赃款数额并非等同于作案造成损失的范围,不能简单依据刑事判决认定赃款的数额确定损失范围。刑事案件与民事案件的证明标准不同,不应以刑事案件的高标准取代民事证明标准。
BASIC FACTS 
Plaintiff: Sun Wei, female, 34 years old, domiciled in Hai'an County, Jiangsu Province. 原告:孙卫。
Defendant: Nantong Baichuan Flour Co., Ltd., domiciled in Hebin West Road, Hai'an Township, Hai'an County. 被告:南通百川面粉有限公司。
Plaintiff Sun Wei filed a lawsuit with the People's Court of Hai'an County, Jiangsu Province against defendant Nantong Baichuan Flour Co., Ltd. (hereinafter referred to as “Baichuan Company”) for dispute over unjust enrichment. 原告孙卫因与被告南通百川面粉有限公司(以下简称百川公司)发生不当得利纠纷,向江苏省海安县人民法院提起诉讼。
Plaintiff Sun Wei alleged that she was once the warehouse keeper of Baichuan Company. In 2011, Baichuan Company found that Sun Wei committed duty-related embezzlement with Yang Jianjun and Zhang Ronggen. Upon consultation, both parties agreed that such duty-related embezzlement would be settled internally at the expense of 400,000 yuan and Sun Wei would not be subject to criminal liability. After the oral agreement was concluded, Sun Wei commissioned other person to deposit 400,463.92 yuan to the bank account of Baichuan Company, but she was still be tipped off and subject to criminal liability. In 2013, the court rendered a criminal judgment, recognizing that Sun Wei has embezzled property of Baichuan Company, amounting to 100,000 yuan in total. Therefore, Sun Wei claimed that the additional 300,463.92 yuan returned by her should be the unjust enrichment of Baichuan Company. She requested the court to order that Baichuan Company should return the unjust enrichment of 300,463.92 yuan and the interest thereof amounting to 54,000 yuan, and bear the litigation costs of this case. 

原告孙卫诉称:其原系百川公司仓库保管员。2011年,百川公司发现其与杨建军、张荣根的职务侵占行为后,经过协商同意以40万元内部解决,不追究刑事责任。口头协议达成后,孙卫委托他人向百川公司账户打入400463.92元,但仍被举报追究刑事责任。2013年,法院刑事判决书认定,孙卫共侵占单位财物10万元。故而,孙卫多退的300463.92元,应为百川公司的不当得利。请求法院判令被告百川公司返还不当得利300 463.92元及利息54 000元,并承担本案诉讼费用。

Defendant Baichuan Company contended that upon auditing and accounting, the losses to Baichuan Company caused by plaintiff Sun Wei and other persons for their embezzlement of the Company's proeprty amounted to 721,881 yuan. After Baichuan Company identified the embezzlement, Sun Wei and other persons negotiated with the Company, required the Company not to investigate their criminal liabilities, and concluded an oral agreement with the Company on returning 400,463.92 yuan, which sum of money was not returned only by Sun Wei. When the People's Court of Hai'an County conducted a criminal trial of the case regarding duty-related embezzlement committed by Sun Wei and other persons, Sun Wei admitted that she had no objection to the auditing report, according to which the proeprty embezzled by Sun Wei and other persons exceeded the amount of money they returned. It was recognized in the criminal judgment that the illicit money amounted to 100,000 yuan, which was not the amount of total proeprty embezzled by Sun Wei and other persons. Sun Wei's claim for Baichuan Company's refund under civil proceedings lacked evidence. Therefore, Baichuan Company requested the court to dismiss the claim of Sun Wei. 被告百川公司辩称:原告孙卫等人侵占我公司财产所造成的损失,经审计核算达721 881元。被公司发现侵占行为后,孙卫等人与公司协商,要求不追究刑事责任,口头达成退赔400463.92元的协议,该款并非孙卫一人所退。海安县人民法院对孙卫等人职务侵占案进行刑事庭审时,孙卫承认对审计报告没有意见,而审计报告中孙卫等人侵占的财产超出其退赔款。刑事判决书认定赃款10万元,并非孙卫等人侵占公司财产的全部,孙卫通过民事程序要求公司退款缺乏依据。请求法院判决驳回孙卫的诉讼请求。

After a trial, the People's Court of Hai'an County, Jiangsu Province found that:

 江苏省海安县人民法院审理查明:
From 2004, plaintiff Sun Wei started to serve as the warehouse keeper of Baichuan Company. In 2011, defendant Baichuan Company found that Sun Wei, Yang Jianjun (accounting staff of the Company), and Zhang Ronggen (leader of the production workshop) were suspected of jointly embezzling the Company's flour and bran; however, Sun Wei did not admit it in the talk between her and Baichuan Company. Therefore, Baichuan Company commissioned Jiangsu Zhongzheng Tongren Accounting Firm Co., Ltd. (hereinafter referred to as “Zhongzheng Tongren Accounting Firm”) to conduct a special auditing on the safekeeping of finished products in stock from May 2008 to December 2010 and the relevant information on Baichuan Company's internal control and financial management. On March 26, 2011, Zhongzheng Tongren Accounting Firm issued a Special Auditing Report on the Safekeeping of Finished Products of Nantong Baichuan Flour Co., Ltd. (No. 239 [2011], Zhongzheng Tongren Accounting Firm). Sun Wei bore the auditing fees of 20,000 yuan. After the auditing report was made, Sun Wei, Yang Jianjun, and Zhang Ronggen admitted their illegal embezzlement of Baichuan Company's proeprty, required the Company not to investigate their criminal liabilities, and concluded an oral agreement on returning the illicit money, according to which Sun Wei and other persons should return 400,463.92 yuan to Baichuan Company. On April 10 and 26, 2011, through her relative Shao Junlan, Sun Wei twice transferred a total of 400,463.92 yuan to the bank account of Baichuan Company, including 100,000 yuan returned by Yang Jianjun and Zhang Ronggen. 2004年,原告孙卫开始担任百川公司仓库保管员。2011年,被告百川公司发现孙卫与核算员杨建军、生产车间班长张荣根等人有共同侵占单位面粉及麸皮嫌疑,但单位找孙卫谈话时其拒绝承认。百川公司遂委托江苏中正同仁会计事务所有限公司,对百川公司2008年5月至2010年12月期间库存产成品保管情况及与之相关的企业内控、财务管理等情况实施了专项审计工作。2011年3月26日,中正同仁所出具了同仁专审2011第239号《南通百川面粉有限公司产成品保管情况专项审计报告》。孙卫承担审计费20 000元。审计结果出来后,孙卫、杨建军、张荣根等人承认了非法侵占公司财产的事实,要求公司不追究刑事责任,口头协商达成退赔协议,由孙卫等人向百川公司退赔400463.92元。孙卫通过其亲戚邵俊兰,于2011年4月10日、2011年4月26日分二次共向百川公司账户打款400 463.92元,该款中包括杨建军、张荣根二人所退款10万元。
On October 21, 2011, upon receipt of a public tip-off against Sun Wei, Yang Jianjun, and Zhang Ronggen for their suspected duty-related embezzlement, the Public Security Bureau of Nantong City transferred them to the Public Security Bureau of Hai'an County for docketing the case and criminal investigation. On December 16, 2013, the People's Court of Hai'an County issued a criminal judgment (No. 0195 [2013], First, Criminal Division  = 2 \* ROMAN II, People's Court, Hai'an), in which it was determined that Sun Wei, Yang Jianjun, and Zhang Ronggen were guilty of duty-related embezzlement. The three persons were all subject to suspended execution of sentences and they did not appeal. In the criminal judgment, it was found that: During the period from January 2007 to October 2009 when Sun Wei served as the warehouse keeper of Baichuan Company, by taking advantage of her position for registering the amounts of flour and bran produced by Baichuan Company entering or exiting the warehouse, she privately sent the remaining flour and bran to other person for sale and obtained the gains of 20,000 yuan. From October 2009 to October 2010, in the process of checking the amounts of flour and bran entering the warehouse by Sun Wei, Yang Jianjun, and Zhang Ronggen, by the means of undercounting such flour and bran, Sun Wei made other person sell the excessive flour and bran at the market price, obtaining 80,000 yuan. Sun Wei, Yang Jianjun, and Zhang Ronggen divided up the illicit money of 80,000 yuan in the proportion of 4:2:2. After the case was exposed, Sun Wei, Yang Jianjun, and Zhang Ronggen compensated the victim entity for all of its economic losses. 2011年10月21日,南通市公安局接群众举报孙卫、杨建军、张荣根三人涉嫌职务侵占后,移交海安县公安局进行刑事立案侦查。2013年12月16日,海安县人民法院作出(2013)安刑二初字第0195号刑事判决书,认定孙卫、杨建军、张荣根构成职务侵占罪,三人均被判处缓刑。三人未上诉。刑事判决书查明:孙卫于2007年1月份至2009年10月份,在担任百川公司仓库保管员期间,利用登记百川公司生产的面粉及麸皮出入库数量等工作的职务之便,将积余的面粉及麸皮私自以市场价让他人代为销售,得款人民币2万元,占为己有。孙卫、杨建军、张荣根于2009年10月份至2010年10月份,在清点面粉及麸皮入库数量的过程中,采取少计入库数量的手段,将多出的面粉及麸皮,由孙卫负责以市场价让他人代为销售,得款人民币8万元。孙卫、杨建军、张荣根按4:4:2的比例分掉赃款人民币8万元。案发后,孙卫、杨建军、张荣根赔偿被害单位的全部经济损失。
The facts found in the criminal judgment were basically consistent with those as recognized in the letter of proposal for prosecution (No. 393 [2013], Public Security Bureau, Hai'an) issued by the Public Security Bureau of Hai'an County, the charging document (No. 453 [2013], People's Procuratorate, Hai'an) issued by the People's Procuratorate of Hai'an County, and the letter of proposal for sentencing (No. 453 [2013], People's Procuratorate, Hai'an) issued by the People's Procuratorate of Hai'an County. The illicit money directly obtained by Sun Wei, Yang Jianjun, and Zhang Ronggen from their embezzlement was gradually fixed to 100,000 yuan and it was specified that the three persons have positively returned the illicit money and compensated the victim entity for all of its economic losses. 刑事判决书查明的事实与海安公安局海公(经)诉字[2013]393号起诉意见书、海安县人民检察院海检诉刑诉[2013]453号起诉书、海安县人民检察院海检诉量建 [2013]453号量刑建议书认定的事实基本一致,将孙卫、杨建军、张荣根三人侵占直接所得赃款从10万余元,逐步固定为10万元,并明确三人积极退赔被害单位全部经济损失。
On December 3, 2011 when the Economic Investigation Brigade of the Public Security Bureau of Hai'an County interrogated Sun Wei, she made the following self-statement: In 2007, I started to sell the flour I kept and it was mainly sold to Li Fengying, who had a shop front at the gate of Baichuan Company and engaged in the business of flour and fine dried noodles. On October 10, 2010, the Company asked me to deliver the amount of flour in stock in the warehouse to it, but I could not make it. Around October 20, after handing over the warehouse accounts to the Company, I was suspended from the position of warehouse keeper and my wages were also stopped. Meanwhile, the Company started to check my accounts. Tang Changgen and Huang Zhaolong, who were chairman of the board of directors and secretary of the Party branch of the Company, were the persons who first had a talk with me, but at that time, I did not admit that I have sold products in the warehouse. After the auditing report was made, the Company had a talk with me again and I admitted that I have sold some products in the warehouse. I also wrote a self-criticism and delivered it to the Company, in which I admitted that I have sold products of the Company, valuing more than 100,000 yuan. In such a situation I was reluctant to negotiate with the Company personally. I asked Shao Junlan, who was my husband's sister and worked in Nantong Branch of Agricultural Bank of China, to handle this matter for me. When Shao Junlan asked how much money I have earned, I really could not remember the accurate number and only said it amounted to more than 100,000 yuan. Shao Junlan decided for me that it amounted to over 130,000 yuan. Then, I discussed the matter with Yang Jianjun and Zhang Ronggen, and Yang Jianjun returned 20,000 yuan and Zhang Ronggen returned a total of 80,000 yuan to me. Shao Junlan deposited a total of 135,463.92 yuan (including the interest thereof) to the bank account of the Company for me. After Shao Junlan returned the money for me, the Company also repeatedly called me, said that according to the auditing report, the missing goods valued nearly 1 million yuan, and asked me to return at least 400,000 yuan. Afterwards, Shao Junlan went to the Company again to handle this matter for me, admitted that I have returned 400,000 yuan, and asked the Company not to report a case to the public security authority. 2011年12月3日,海安县公安局经侦大队对孙卫讯问时,孙卫自我陈述:2007年时,我开始把我保管的面粉拿出去卖的,主要是把面粉卖给李凤英,她在百川公司厂门口有个门面做面粉、挂面生意。2010年10月10日,公司要我把仓库每天的库存数交给公司,我拿不出来。10月20日左右,我把仓库的账交给公司后,我就从仓库保管员岗位停职下来,也停了我的工资,同时公司开始查我的账。公司董事长唐长根和支书黄兆龙两个人先找我谈的,当时我没有承认卖了仓库里的货。审计报告出来后,公司又找我,我承认卖了仓库里的货,我也写检查交了公司,承认卖了公司十多万元的货。到了这个地步,我也不好再出面找公司,我就请了我丈夫的姐姐邵俊兰替我处理的,邵俊兰在市农行工作。邵俊兰问我具体弄了多少钱,我实在想不起来准确数目,只讲有十多万元。邵俊兰帮我作的主,十三万多元。我找了杨建军和张荣根商议退钱的事,杨建军退了2万元给我,张荣根总共退了8万元。邵俊兰替我还到公司账户上的,连同利息共计135 463.92元。邵俊兰替我把钱退了后,公司又多次打电话找我,讲根据审计报告少掉货物近一百余万元,公司要我至少退赔四十万元。后来也是邵俊兰替我出面到公司处理的,承认退赔四十万元,要求公司不要报案。
It was also found that: It was stated in the Special Auditing Report on the Safekeeping of Finished Products of Nantong Baichuan Flour Co., Ltd. (No. 239 [2011], Zhongzheng Tongren Accounting Firm) that Zhongzheng Tongren Accounting Firm found the following problems in its inspection on the safekeeping of the warehouse from May 2008 to December 2010 on the basis of the monthly statements of incomes, payments, and balances and stock check details provided by Sun Wei: (1) the monthly statement of incomes, payments, and balances and the stock check details of Baichuan Company on May 20, 2009 showed that the actual amount of flour in stock was 141,825 kg less than that on books and the actual amount of bran in stock was 3,880 kg less than that on books; (2) the monthly statement of incomes, payments, and balances and the stock check details of Baichuan Company on November 20, 2010 showed that the actual amount of flour in stock was 126,775 kg less than that on books and the actual amount of bran in stock was 60,120 kg less than that on books. As for such problems, the auditing officers inquired Sun Wei, the former warehouse keeper of Baichuan Company, but Sun Wei failed to give any reasonable explanation. As for the auditing report, on December 12, 2013 when the People's Court of Hai'an County conducted a criminal trial of the case regarding Sun Wei and other persons' duty-related embezzlement, Sun Wei once said in the cross-examination concerning Tang Changgen's testimony that “I disagreed with the auditing result that the property losses of Baichuan Company were caused by my embezzlement because all auditing officers were Tang Changgen's friends he invited from Nanjing City”; however, in the subsequent cross-examination concerning the auditing report itself, Sun Wei gave a definite answer that she had no objection. 另查明,同仁专审2011第239号《南通百川面粉有限公司产成品保管情况专项审计报告》载明,中正同仁所对百川公司 2008年5月至2010年12月期间的库房保管情况进行了检查,检查中发现下列问题:1.根据孙卫提供的收付存月报表和存货清查明细表发现:(1)百川公司2009年5月20日的收付存月报表和存货清查明细表显示实际盘点数面粉比账面数少 141 825公斤,麸皮比账面数少3880公斤; (2)百川公司2010年11月20日的收付存月报表和存货清查明细表显示实际盘点数面粉比账面数少126 775公斤,麸皮比账面数少60 120公斤。就此问题审计人员询问了百川公司当时的仓库保管员孙卫,孙卫未给予合理解释。对于该审计报告,2013年12月12日,海安县人民法院就孙卫等人职务侵占案刑事庭审时,孙卫在对唐长根证言进行质证中曾表示:“审计的人都是唐长根从南京请的朋友,审计的结果认为厂里的损失就是我侵占的,我不认同。”但在其后质证审计报告本身时,孙卫明确回答没有异议。
Liu Ming, who participated in the examination concerning the auditing report, appeared in court and served as a witness. He said that the aforesaid auditing result has taken reasonable losses into account and the losses to Baichuan Company from May 2008 to November 20, 2010 may be obtained by directly adding the aforesaid data. The litigation representatives of both parties jointly learned from www.ntgrain.gov.cn upon inquiry that from May 2008 to November 20, 2010, the minimum ex-works price of special grade No. 1 flour of Baichuan Company was 2,680 yuan per ton, which was consistent with that issued by Hai'an Branch of Haifeng Rice Industry Co., Ltd. and Taixing Suzhong Flour Milling Co., Ltd. Sun Wei failed to provide any contrary evidence for the issue of price, nor did she file an application for identification within the time limit as required by the court. In the court trial, Sun Wei admitted that the flour she embezzled was special grade No. 1 flour and above. 审计报告参审人员刘鸣到庭作证称,上述审计情况已考虑合理损耗,将数据直接相加可作为百川公司2008年5月至 2010年11月20日之间的损失。双方诉讼代理人从南通粮食网共同查询获悉,2008年5月至2010年11月20日之间海安面粉特一粉的最低出厂价为2680元/吨,该查询结果与海丰米业海安有限公司、泰兴苏中制粉有限公司出具的证明一致。孙卫未对价格问题举出相反证据,亦未在法庭规定期限内提出鉴定申请。庭审中,孙卫承认其侵占的面粉为特一粉以上。
In the second trial, Sun Wei adjusted her claim to 248,463.92 yuan and the interest of 54,000 yuan calculated under the formula [total amount of money returned (400,463.92 yuan) – amount of money returned by Yang Jianjun and Zhang Ronggen (100,000 yuan) – amount of illicit money of Sun Wei as recognized in the criminal judgment (52,000 yuan) = 248.463.92 yuan]. 二次庭审时,孙卫将诉讼请求调整为 248 463.92元及利息54 000元,其计算方式为总退赔额400 463.92元-杨建军张荣根退款额100 000元-刑事判决书确定的孙卫赃款额52 000元=248 463.92元。
JUDGMENT'S REASONING 
After the trial of first instance, the People's Court of Hai'an County, Jiangsu Province held that: A party has the burden of providing evidence to prove his or her claim, unless it is otherwise provided for by any law. If not, he or she should assume the adverse consequences. In this case, plaintiff Sun Wei filed a civil lawsuit regarding unjust enrichment. She should assume the burden of proof for her claim that the property losses of defendant Baichuan Company caused by the embezzlement committed by her independently or jointly with other persons were lower than the amount of compensation, 400,463.92 yuan, under the oral agreement. On the basis of analysis of the existing evidence, evidence provided by Sun Wei did not reach the standard of proof on the following grounds: 江苏省海安县人民法院一审认为:当事人对自己提出的主张,有责任提供证据加以证明,除法律有特别规定外。否则,应承担不利后果。本案原告孙卫以不当得利提起民事诉讼,应就其单独和共同侵占被告百川公司造成的财产损失低于口头协议赔偿额400 463.92元举证证明。从本案现有证据分析,孙卫所举证据并未达到证明标准,其理由如下:
First, the amount of compensation, 400,463.92 yuan, under the oral agreement was a product reached by both parties through negotiation, which did not violate legal provisions. On December 3, 2011 when the Economic Investigation Brigade of the Public Security Bureau of Hai'an County interrogated Sun Wei, Sun Wei explained that “Shao Junlan went to the Company to handle this matter for me and admitted that I have returned 400,000 yuan.” This explanation was consistent with the allegation and contention of both parties in the court trial. Therefore, the amount of compensation, 400,463 yuan, under the oral agreement was a product voluntarily reached by both parties according to the law and there were no such illegal circumstances as duress and fraud. As for the issue of whether a case was reported to the public security authority, since duty-related embezzlement was involved in a case of public prosecution, the victim had no right to decide how it should be handled by law and it may not serve as a basis for recognizing the effectiveness of the agreement. 第一、口头协议赔偿额400463.92元是双方当事人协商一致的产物,并不违反法律规定。2011年12月3日,海安县公安局经侦大队对孙卫讯问时,孙卫本人交代“邵俊兰替我出面到公司处理的,承认退赔四十万元”,该交代与本案庭审中双方当事人的诉、辩称相吻合。因而,口头协议赔偿额400 463.92元是双方当事人合法自愿达成的,并无胁迫、欺诈等非法情形。至于是否报案问题,由于职务侵占罪系公诉案件,受害人无权决定法律应否和如何处理,不应成为认定协议效力的依据。
Second, the auditing report has been accepted by both parties, which should serve as evidence for determining the scope of losses in this case. Sun Wei explained in the aforesaid interrogation that she admitted the criminal fact of embezzlement after the auditing report was made. In the court trial of the criminal case, she did not raise any objection in the direct-examination concerning the auditing report itself. In the court trial of this case, she agreed to bear the auditing expenses of 20,000 yuan. Although the auditing report was made on the unilateral authorization of Baichuan Company, under the circumstance where the identification report that was made on unilateral authorization was not fully prohibited from serving as evidence by law and as the opponent party, Sun Wei finally accepted the auditing report in the criminal trial, it should be recognized that the auditing report could serve as the basis for calculating the losses. Sun Wei required the re-identification of the auditing report, but she failed to provide any evidence that was sufficient to refute the auditing report. Therefore, the court did not approve her application. 第二、审计报告经双方当事人认可,应作为本案证据认定损失范围。孙卫在上述讯问中交代,其系在审计报告出来后承认侵占犯罪事实的,且在刑事案件庭审中其对审计报告本身直接质证时并未提出异议,而本案庭审中其则认可承担审计费 20000元。故而,尽管审计报告系百川公司单方委托,但在法律并未完全禁止单方委托鉴定报告作为证据使用情况下,孙卫作为对方当事人在刑事庭审中最终接受了报告,应认定报告可作为损失计算的依据。孙卫要求对审计报告重新鉴定,但未提供足以反驳审计报告的证据,法院对其申请不予准许。
Third, the amount of illicit money as recognized in the criminal judgment was not equivalent to the scope of losses caused by the crime and the scope of losses could not be simply determined on the basis of the amount of illicit money as recognized in the criminal judgment. Under normal conditions, the scope of direct and indirect losses to a victim caused by the criminal offense is greater than the amount of the illicit money the criminal offender has directly obtained. In the settlement of dispute over compensation for civil losses caused in a criminal case, the amount of losses to the victim is the basis for determining the amount of compensation other than the amount of illicit money the criminal offender has directly obtained. In essence, Sun Wei's claim during litigation did not differentiate the amount of illicit money she obtained as recognized in the criminal judgment from the scope of losses to the victim, which did not conform to the basic spirit of law. 第三,刑事判决认定的赃款数额并非等同于作案造成损失的范围,不能简单依据刑事判决认定赃款的数额确定损失范围。通常情况下,犯罪行为给受害人造成直接和间接损失的范围要大于作案人所直接获得的赃款。在处理刑事案件造成的民事损失赔偿纠纷时,赔偿所立足的依据是受害人的损失,而不是作案人所直接获得的赃款。孙卫诉讼中的主张,实质上是将刑事判决认定其所获赃款数额与受害人损失范围未加区分、混为一谈,不符合基本法律精神。
Fourth, the standard of proof for a criminal case differed from that for a civil case. Therefore, the higher standard of proof in a criminal case should not replace the standard of proof in a civil case. Any legal issue should be handled according to the modern legal thinking and ways. With the rapid development of the times, the standard of proof for civil cases has been separated from that for criminal cases and an independent system has been established. Judges should not fully bring the thinking of criminal burden of proof to the civil burden of proof. While a criminal case emphasizes on clear criminal facts and true and sufficient evidence, a civil case follows the high probability rule, according to which a comprehensive judgment and “presumption” may be made on the basis of some evidence and daily experience. In general, the civil standard of proof is comparatively lower than the criminal standard of proof. When determining the illicit money embezzled by Sun Wei in the criminal case, the People's Court of Hai'an County gradually compressed and fixed it from tens of thousand yuan and more than 100,000 yuan to 100,000 yuan, which has embodied the strict standard of proof for criminal cases. In this case, the statements of both parties, the confession of Sun Wei in the criminal case, the auditing report, and the testimonies of witnesses were basically uniform and could be proved by the relevant facts according to the high probability standard. Even if the bran losses were not included, calculated at the minimum ex-works price when the case was exposed, only the flour losses for which Sun Wei failed to gave reasonable explanation during the term when she served as the warehouse keeper amounted to over 710,000 yuan [(141, 825 kg + 126,775 kg) / 1,000 × 2,680 yuan per ton], which was far higher than the amount of compensation under the oral agreement, 400,463.92 yuan. 第四,刑事案件与民事案件的证明标准不同,不应以刑事案件的高标准取代民事证明标准。处理法律问题,应以现代法律思维和方式进行。随着时代的快速发展,民事证明标准已从刑事证明标准中脱离出来,建立了自己独立的体系,人们不应将刑事证明思维完全带入民事证明之中。刑事案件强调犯罪事实清楚,证据确凿充分,民事案件采行高度盖然性规则,可在一定证据基础上,根据日常生活经验综合判断“推定”。相对而言,民事证明标准一般要低于刑事证明标准。刑事案件认定孙卫侵占赃款时,从十几万元、十万余元逐渐压缩固定为十万元,体现了刑事案件严格的证据标准。本案中,双方当事人陈述、刑事案件中孙卫的供述、审计报告、证人证言等基本统一,按照高度盖然性标准,相关事实足以证明。即便不将麸皮损失计入,仅按照案发阶段面粉最低出厂价计算,孙卫担任仓库保管员期间不能合理解释的损失仅面粉一项即达71万余元[(141 825公斤+126 775公斤)÷1000×2680元/吨],远高于口头协议赔偿额400463.92元。
JUDGMENT 
In conclusion, evidence provided by plaintiff Sun Wei was insufficient to prove that the property losses of defendant Baichuan Company independently embezzled by her and jointly with other persons were lower than 400,463.92 yuan. Sun Wei's claim that Baichuan Company had unjust enrichment lacked legal and factual basis, which was not admitted by the court. Therefore, in accordance with the provisions of Article 64 of the Civil Procedure Law of the People's Republic of China and Articles 2 and 28北大法宝 of Some Provisions of the Supreme People's Court on Evidence in Civil Procedures, on July 15, 2014, the People's Court of Hai'an County, Jiangsu Province rendered: 综上,本案原告孙卫所举证据不足以证明其单独和共同侵占被告百川公司造成的财产损失低于400463.92元,其主张被告百川公司存在不当得利缺乏法律和事实依据,法院不予采纳。据此,江苏省海安县人民法院依照《中华人民共和国民事诉讼法》第六十四条、最高人民法院《关于民事诉讼证据的若干规定
菊花碎了一地
》第二条我我我什么都没做、第二十八条之规定,于2014年7月15日作出判决:
To dismiss the claim of plaintiff Sun Wei. 驳回原告孙卫的诉讼请求。
After the judgment of first instance was pronounced, neither plaintiff nor defendant appealed and the judgment has come into force.

 一审判决后,原被告双方均未提起上诉,判决已经发生法律效力。
 

     
     
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