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Case of Misappropriation by Chen Yongjun (Case of Misappropriation)
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陈拥军侵占案
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【法宝引证码】
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- Type of Dispute：
Criminal--＞Graft & Bribery
- Legal document：
Judgment
- Judgment date：
03-26-1996
- Procedural status：
Death Penalty Review
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Case of Misappropriation by Chen Yongjun (Case of Misappropriation)
(Case of Misappropriation)
陈拥军侵占案
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CASE OF MISAPPROPRIATION BY CHEN YONGJUN | | 陈拥军侵占案 |
BASIC FACTS | |
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Defendant: Chen Yongjun, male, 27, former cashier with Chemical Fertilizer Factory, Shimen County, Hunan Province, arrested on December 5, 1991. | |
被告人：陈拥军，男，２７岁，原系湖南省石门县化肥厂出纳员，１９９１年１２月５日被逮捕。 |
Defence Attorney: Qin Shixi and Guo Xiaohui, lawyers from Shimen County Law Office. | |
辩护人：覃事喜、郭晓辉，石门县律师事务所律师。 |
The People's Procuratorate of Changde City, Hunan Province, initiated pubic prosecution in Intermediate People's Court of Changde City on the ground that Chen Yongjun has committed the crime of embezzlement. The Intermediate People's Court of Changde City ascertained the following through public hearing: | |
湖南省常德市人民检察院以被告人陈拥军犯贪污罪，向常德市中级人民法院提起公诉。常德市中级人民法院经公开审理查明： |
During the period when he was a cashier with Shimen Chemical Fertilizer Company, from May,1988 to November, 1991, Chen Yongjun took advantage of his office. Through accepting revenues without clearing account, thievishly expending deposits of Chemical Fertilizer Factory and embezzling, he committed crimes 62 times, embezzling RMB 175,651.94 yuan of public funds. Later, to avoid being found out, he escaped with more than 54,000 yuan of public funds after destroying part of vouchers, only to get arrested later. After the case was cleaned up, booties and boodles worthy of 96,769 yuan was recovered, while 78,882.72 yuan was lost, 67,000 yuan of which was spent buying goods, leading a dissipated life and giving out gifts and 11,000 yuan of which was lent out to others and could not be recovered. | |
被告人陈拥军在石门化肥厂任出纳员期间，于１９８８年５月至１９９１年１１月，利用职务上的便利，采取收入不记帐、偷支本厂在银行的存款、监守自盗等手段，先后作案６２次，侵吞公款１７５６５１．９４元；后恐罪行暴露，销毁部分单据后携带公款５．４万余元潜逃，被抓获归案。破案后，追缴赃款赃物共计９６７６９．２２元，造成损失７８８８２．７２元。其中，陈拥军购买物品、吃喝玩乐和送礼等挥霍６．７万余元，借给他人尚未追回的贪污款有１．１万余元。 |
The facts above were supported with product sales invoice, certificate of settling accounts, bank accounts, checks only for account, expert report on accounting, handwriting and seals, testimonies and booties and boodles that was recovered. Defendant Chen Yongjun also made confessions. | |
上述事实，有产品销售发票、清账证明、银行帐簿、转帐支票和对会计、文字、印章的鉴定报告，以及证人证言、查获的赃款赃物等证据证实。被告人陈拥军也作过供述。 |
PROCEDURAL POSTURE | |
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On March 3, 1994, the Intermediate People's Court of Changde City, Hunan Province, held that defendant Chen Yongjun committed the crime of embezzlement and shall be sentenced to death and deprivation of political rights for life. Chen Yongjun was not satisfied and lodged appeal with the Higher People's Court of Hunan Province. His grounds for appealing were: First, it was wrong for the first instance to hold that he committed embezzlement for the money other people received in his place using his seal and the uncleared money; second, the public funds that he lent to other people shall be classified as misappropriated funds instead of embezzled funds, and he shall get a lighter punishment accordingly. Defense attorneys for Chen Yongjun raised the points that in the first instance the whereabouts of boodles worthy of 40,000 yuan was not explained, and so the facts was not clear; that Lu Bin's car that has been seized shall be deducted from the money that Chen Yongjun lent to Lu Bin; and that the reason that Chen Yunjun had the chance to embezzle public funds was that the directors of the Factory neglected their duties. But the first instance did not take these factors into consideration, so the punishment was too heavy and they prayed for a lighter punishment. | |
湖南省常德市中级人民法院于１９９４年３月３日，作出认定被告人陈拥军犯贪污罪，判处其死刑，剥夺政治权利终身的刑事判决。陈拥军不服，向湖南省高级人民法院提出上诉。上诉理由是：一、第一审刑事判决把他人用其印章代其收取的货款，以及购货人是否付过款尚未查清的款项，均认定其贪污是错误的。二、其借给他人使用的公款，应当以挪用公款定性，处罚应当比贪污轻。陈拥军的辩护人提出，第一审刑事判决没有说明４万余元的赃款去向，是事实不清；扣押卢斌的汽车应当折抵陈拥军借给卢斌的贪污款而没有折抵，陈拥军能够贪污公款是因厂领导严重失职所致，第一审没有考虑这些因素，因此量刑过重，请求从轻处罚。 |
JUDGMENT'S REASONING | |
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The Higher People's Court of Hunan Province affirmed Chen Yongjun's criminal facts as was found by the first instance. This court held: Chen Yongjun was a handler and manager of public property. He took advantage of his office and embezzled public funds, which constituted the crime of embezzlement in violence of Article 1 of the Supplementary Provisions of the Standing Committee of the National People's Congress Concerning the Punishment of the Crime of Embezzlement and Bribery, and he shall be punished according to Section (1), Article 2 of the Supplementary Provisions. The first ground on which appellant Chen Yongjun appealed was not in conformity with the facts after examination. First, in all the instances that other people received revenues in his place, the sales invoices were all sealed with these persons' own seals, and no instance was found in which revenues were received by others with the seal of 'Chen Yongjun', which was oval. Second, no revenues received by others in his place were held as embezzled except one which has been given to Chen, as demonstrated by a voucher. Third, all the dates on which Chen Yongjun was held in the first instance to have embezzled money were the days on which he was on duty according to the journal of check on attendance. Fourth, for all the payments that has been held to be embezzled by Chen Yongjun, there were purchasers testifying that payments have been made, and the remainder of the payments were not held as embezzled by Chen Yongjun because there weren't purchasers or other evidence to prove that payments have been made. Neither could the second ground on which appellant Chen Yongjun appealed stand examination. There should be entries in the account book and the vouchers shall be complete when public funds were converted to other uses, so as to show that the appropriator recognized that public funds were still public funds although they were converted to other uses. The facts were, however, when Chen Yongjun escaped, he not only took a large amount of public funds with him, but also destroyed the invoice copying book and the check counterfoils. This act is enough to prove that Chen Yongjun had already deemed these public funds as private properties that he could possess exclusively. The first instance has already made clear the whereabouts of the more than 78,000 yuan of loss caused by Chen Yongjun's embezzlement.The car that was seized from Lu Bin turned out to belong to Materials Trading Center of Shimen County, and should be given back to it, so the car could not be deducted from the money that Lu Bin owed Chen Yongjun, which was embezzled. Although Chen Yongjun took advantage of the neglect of duty by the directors ofthe Factory to commit crimes, the duration of his crime was long, the amount was large and the circumstances were especially severe. In accordance with law, he shall be sentenced to death, and the reasons raised by defence counsels for a slight punishment shall be dismissed. Based on the criminal facts stated above, the first instance sentenced him to death and deprivation of political rights for life. This sentence was clear in ascertaining the facts, the evidence was valid and complete, the classification of crime was accurate, the measurement of punishment was appropriate and the procedure was lawful.
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湖南省高级人民法院对一审法院认定陈拥军的犯罪事实予以确认。该院认为，上诉人陈拥军是经手、管理公共财物的人员，利用职务上的便利侵吞公款，其行为触犯了全国人大常委会《关于惩治贪污罪贿赂罪的补充规定》第一条的规定，构成贪污罪，应当依照该补充规定第二条第（１）项的规定处罚。上诉人陈拥军的第一条上诉理由，经查与事实不符。第一，凡是他人代收货款的，销售发票上都是代收人自己的印鉴，没有发现以“陈拥军”的扁形印鉴代收货款的事实；第二，凡是他人代收货款的，除一笔因有凭证证实已经转交给陈拥军而认定其贪污外，其余均未认定贪污；第三，凡是原判认定陈拥军贪污货款的日期，根据考勤记载，都是陈拥军上班的日期；第四，凡是认定陈拥军贪污的货款，都有购货人证实已经付清货款，其余因无购货人证实或者无其他证据证实已经付清货款的，均未认定是陈拥军贪污。上诉人陈拥军的第二条上诉理由，经查也不成立。如果是挪用公款，账面上应当有记载，记帐凭证应当齐全，以此来表示公款虽然已经被挪用，挪用人仍然承认其为公款。但是事实是，陈拥军在潜逃前，不仅携带走大量公款，还将自己保管的销售发票记帐联、提取现金的支票存根等单据毁坏。此行为足以证明，陈拥军已经视这些公款为自己可以独占的私有财产。第一审已经查明陈拥军贪污所造成损失的７．８万余元的全部去向。从卢斌手中扣押的汽车，已经查明属于石门县物资贸易中心所有，应当退回该单位，不能折抵卢斌欠陈拥军的贪污款。陈拥军虽然是趁本厂领导严重失职而犯罪，但是其犯罪时间长、数额巨大，属情节特别严重，依法应当判处死刑。辩护人请求从轻处罚陈拥军的理由，不予采纳。第一审根据上述犯罪事实，依法判处其死刑，剥夺政治权利终身，认定事实清楚，证据确实、充分、定罪准确，量刑适当，审判程序合法。
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