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The No. 1 Branch of the People's Procuratorate of Shanghai Municipality v. Tang Zhihua, et al. (Case of Embezzlement, Duty-related Encroachment and Acceptance of Bribes by Enterprise Employees)
唐志华等五人贪污、职务侵占、企业人员受贿案
【法宝引证码】

The No. 1 Branch of the People’s Procuratorate of Shanghai Municipality v. Tang Zhihua, et al. (Case of Embezzlement, Duty-related Encroachment and Acceptance of Bribes by Enterprise Employees)
(Case of Embezzlement, Duty-related Encroachment and Acceptance of Bribes by Enterprise Employees)
唐志华等五人贪污、职务侵占、企业人员受贿案

The No. 1 Branch of the People's Procuratorate of Shanghai Municipality v. Tang Zhihua, et al.
(Case of Embezzlement, Duty-related Encroachment and Acceptance of Bribes by Enterprise Employees)

 

唐志华等五人贪污、职务侵占、企业人员受贿案

BASIC FACTS 
Public Prosecution Organ: The No. 1 Branch of the People's Procuratorate of Shanghai Municipality. 公诉机关:上海市人民检察院第一分院。
Defendant: Tang Zhihua, male, 46 years old, former legal representative of Shanghai Baoqiang Industrial Co., Ltd., and arrested on February 23, 2000. 被告人:唐志华,男,46岁,原系上海宝强实为有限公司法定代表人,2000年2月23日被逮捕。
Defender: Lü Shengqing, attorney-at-law of Zheng Chuanben Law Firm. 辩护人:吕绳庆,郑传本厂律师事务所律师。
Defender: Xu Wenbao, attorney-at-law of Shanghai Kewei Law Firm. 辩护人:许文宝,上海市科伟律师事务所律师。
Defendant: Shao Xianchu, male, 52 years old, former director of Shanghai Fine Machinery and Electric Appliance Factory, and arrested on March 22, 2000. 被告人:邵先初,男,52岁,原系上海精工机械电器厂厂长,2000年3月22日被逮捕。
Defender: Zhao Xiongwen, attorney-at-law of Shanghai Yishi Law Firm. 辩护人:赵能文,上海市毅石律师事务所律师。
Defender: Du Aiwu, attorney-at-law of Shanghai Huayuan Law Firm. 辩护人:杜爱武,上海市华源律师事务所律师。
Defendant: Zhang Yong, male, 41 years old, former vice director of Shanghai Fine Machinery and Electric Appliance Factory, and arrested on July 19, 2000. 被告人:张勇,男,41岁,原系上海精工机械电器厂副厂长,2000年7月19日被逮捕。
Defender: Huang Minggang, attorney-at-law of Shanghai Liancheng Law Firm. 辩护人:黄明刚,上海市联诚律师事务所律师。
Defendant: Zhang Longhai, male, 48 years old, former director of Shanghai No.3 Printing Machine Factory, and arrested on July 12, 2000. 被告人:张龙海,男,48岁,原系上海第三印刷机械厂厂长,2000年7月12日被逮捕。
Defenders: Zhai Jian and Yu Zengguo, attorneys-at-law of Shanghai Mingri Law Firm. 辩护人:翟建、余增国,上海市明日律师事务所律师。
Defendant: Liu Kaikai, male, 55 years old, former vice director of Shanghai No.3 Printing Machine Factory, and arrested on July 12, 2000. 被告人:刘恺恺,男,55岁,原系上海第三印刷机械厂副厂长,2000年7月12日被逮捕。
Defenders: Wang Xiangbao and Huang Donghong, attorneys-at-law of Zheng Chuanben Law Firm. 辩护人:王湘堡、黄冬红,郑传本律师事务所律师。
PROCEDURAL POSTURE 
The No. 1 Branch of the People's Procuratorate of Shanghai Municipality filed a public prosecution against Tang Zhihua, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong with the No.1 Intermediate People's Court of Shanghai Municipality for the case of embezzlement, duty-related encroachment, and acceptance of bribes by enterprise employees. 被告人唐志华、张龙海、刘恺恺、邵先初、张勇贪污、职务侵占和企业人员受贿案,由上海市人民检察院第一分院向上海市第一中级人民法院提起公诉。
It is indicted in the bill of prosecution that: 起诉书指控:
Tang Zhihua, in conspiracy with Zhang Longhai, then director of Shanghai No.3 Printing Machine Factory (hereinafter referred to as No.3 Printing Factory), illegally inserted an extra link to the purchase of goods by No.3 Printing Factory, and made No.3 Printing Factory pay an extra of 770,000 yuan, and which was encroached on by Tang himself. Tang and Zhang, further colluding with Liu Kaikai, then vice director of No.3 Printing Factory, falsely invented various kinds of expenses by taking advantage of his post and obtained by fraudulent means more than 240,000 yuan of public money from No.3 Printing Factory, which were also encroached on by Tang himself. Thus, the acts of Tang, Zhang and Liu had violated Article 382 of the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law) and constituted the crime of embezzlement. 被告人唐志华与担任上海第三印刷机械厂(以下简称三印厂)厂长职务的被告人张龙海共谋,给三印厂增设进货环节,贪污三印厂多支出的货款77万余元由唐志华私吞。唐志华、张龙海还伙同担任三印厂副厂长职务的被告人刘恺恺,利用职务便利虚列各项费用,骗取三印厂的公款24万余元,由唐志华私吞。三被告人的行为触犯《中华人民共和国刑法》(以下简称刑法)第三百八十二条的规定,构成贪污罪。
Tang, colluding with Shao Xianchu and Zhang Yong, then director and vice director of Shanghai Fine Machinery and Electric Appliance Factory, respectively (hereinafter referred to as Fine Machinery Factory), illegally inserted an extra link to the purchase of goods by Fine Machinery Factory, and made Fine Machinery Factory pay an extra of more than 2.6 million yuan, and which was encroached on by Tang himself. Thus, the acts of Tang, Shao and Zhang had violated Article 271 of the Criminal Law and constituted the crime of duty-related encroachment. 被告人唐志华与分别担任上海精工机械电器厂(以下简称精工厂)正、副厂长职务的被告人邵先初、张勇共谋,给精工厂增设进货环节,侵占精工厂多支出的货款260万余元由唐志华私吞。三被告人的行为触犯刑法二百七十一条的规定,构成职务侵占罪。
When Shao Xianchu was serving as the director of Fine Machinery Factory, he took advantage of his post and accepted a total 24,800 yuan of bribes from others. Thus, the acts of Shao had violated Article 163 of the Criminal Law and constituted the crime of acceptance of bribes by enterprise employee. 被告人邵先初在担任精工厂厂长期间,利用职务上的便利,收受他人贿赂的财物合计2.48万元。邵先初的行为触犯刑法一百六十三条的规定,构成企业人员受贿罪。
Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong surrendered themselves to the police after the crime, and the No. 1 Branch of the People's Procuratorate of Shanghai Municipality pleaded the court to punish them according to law. 被告人张龙海、刘恺恺、邵先初、张勇犯罪后自首,请依法判处。
In order to affirm the aforesaid accusations, the prosecutor announced at the court session and presented the certifications on the status and post of Tang Zhihua, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong, the testimonies of witnesses Zhang Shaoxiang, Yang Jian, Lü Chengji, Wu Youling, Tang Kai, Tu Jian, Liu Xueming, Wang Dejun, Ren Xuefeng and Han Yumei who did not appear in the court proceedings, the relevant purchase and sales invoices, payment vouchers, vouchers on receipt of goods, audit conclusions and price appraisal conclusions, as well as the confessions made by Tang Zhihua, Zhang Longhai, Shao Xianchu and Zhang Yong at the investigation organ. The prosecutors also invited Han Donghai and Chen Tingchun as well as the appraiser Chen Huaming to serve as a witness in the court. 为证实上述指控,公诉机关当庭宣读和出示了被告人唐志华、张龙海、刘恺恺、邵先初、张勇的身份、职务证明,未出庭证人张少湘、杨健、吕诚吉、吴幼令、汤凯、屠健、刘学铭、王德钧、任雪峰、韩毓妹的证言,有关的购销发票、付款证明、收货凭证和审计、价格鉴定结论,以及唐志华、张龙海、邵先初、张勇到案后在侦查机关所作的供述,并请证人韩东海、陈廷春和鉴定人陈华明出庭作证。
Tang Zhihua, Zhang Longhai, Shao Xianchu and Zhang Yong defended that: the link of purchasing goods was added in light of the actuality instead of being invented through conspiracy; and the profits of Tang were not obtained from encroaching on the money of the said enterprises by changing hands and raising the price but from lowering the selling price of the suppliers. As a result, each defendant had neither criminal intent nor criminal act. Tang Zhihua, Zhang Longhai and Liu Kaikai also defended that: the over 240,000 yuan was truly paid by No.3 Printing Factory because Tang introduced Han Donghai to provide technical services to this factory, and it was not illicit money. 针对起诉书的指控,被告人唐志华、张龙海、邵先初、张勇辩称:进货环节是根据实际需要经过增设的,没有共谋情节;唐志华的赢利不是通过转手加价侵吞企业货款实现的,而主要是通过压低上家销货方的销售价格实现。因此,各被告人没有犯罪的故意和行为。唐志华、张龙海、刘恺恺还辩称,三印厂支出的24万余元,确实是因唐志华介绍韩东海向三印厂提供了技术服务而开支的,不是贪污。
Defenders of Tang Zhihua, et al, also deemed that: most of the profits obtained by Tang were from the profits offered by the goods suppliers. Since Tang introduced Han Donghai to No.3 Printing Factory for providing technical services, No.3 Printing Factory should pay technical service charges; furthermore, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong had never gotten shares from the profits as obtained by Tang Zhihua, which proved that neither of them had criminal intent or motive, and their acts could not constitute any crime. The facts were unclear and the evidence was insufficient to claim that Tang Zhihua, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong had conspired to commit the crime of embezzlement and the crime of duty-related encroachment, so the indictment could not be affirmed. 各被告人的辩护人也认为,唐志华赚取的利润主要来自于上家给他供货时的让利;唐志华介绍韩东海给三印厂提供技术服务后,三印厂应当支出技术服务费;且张龙海、刘恺恺、邵先初、张勇从未在唐志华所赚的钱款中分得好处,证明他们既没有犯罪的目的,也没有犯罪的动机,其行为不构成犯罪。指控唐志华、张龙海、刘恺恺、邵先初、张勇共谋犯贪污罪、职务侵占罪的事实不清、证据不足,不能认定。
The defender of Zhang Longhai made an additional protest: if the acts of Zhang constituted a crime, it was just the crime of seeking unjust benefits for relatives and friends as prescribed in Article 166 of the Criminal Law谨防骗子. Since Zhang had made great efforts for the business operations and the market development of No.3 Printing Factory, had done a lot of useful work, and made outstanding contributions when he was serving as the executive vice director and the director of this factory, so he should be exempted from punishment. 被告人张龙海的辩护人还提出,如果认为张龙海的行为构成犯罪,也只能构成刑法一百六十六条打遮阳伞就显得很娘规定的为亲友非法牟利罪。考虑到张龙海在担任三印厂常务副厂长、厂长期间,曾经为企业的生产经营和市场开拓付出了巨大努力,做了不少有益的工作,有突出贡献,对张龙海应当免除处罚。
Shao Xianchu had no objection to the facts about the acceptance of bribes as indicted in the bill of prosecution, but defended that he did not take advantage of his post and the relevant money was used for entertainment purposes. Based thereon, the defender of Shao argued that Shao accepted the property and money of others for the purpose of entertainment spending, his acts could not constitute the crime of acceptance of bribes by enterprise employee, and the facts were unclear and the evidence was insufficient for convicting such a crime. 被告人邵先初对起诉书指控其受贿的事实没有异议,但辩称自己没有利用职务之便,且所得用于业务交际。邵先初的辩护人据此提出,邵先初出于业务交际才收取他人财物,其行为不构成企业人员受贿罪,认定企业人员受贿罪的事实不清、证据不足。
Upon trial, the No. 1 Intermediate People's Court of Shanghai Municipality found that: 上海市第一中级人民法院经审理查明:
I. On the Crime of Embezzlement and the Crime of Duty-related Encroachment 一、关于贪污罪和职务侵占罪
Tang Zhihua was a former employee of Shanghai Oriental Paper Making Machine Factory and resigned in 1986. Afterwards, he engaged in private transportation and furniture swap business successively. During this period, Tang became familiar with Lu Zhongxin, former general manager of Shanghai Printing and Packaging Machinery Corporation (hereinafter referred to Printing and Packaging Corporation). No.3 Printing Factory was a State-owned enterprise affiliated to Printing and Packaging Corporation. Zhang Longhai and Liu Kaikai were appointed by Printing and Packaging Corporation as the executive deputy manager (in charge of the routine work) and the deputy manager respectively in October 1996. Fine Machinery Factory was a collectively-owned enterprise affiliated to Shanghai Ziguan Machinery Co., Ltd., a Sino-foreign contractual joint venture under Printing and Packaging Corporation. Shao Xianchu and Zhang Yong were appointed by the upper-level enterprises as the general manager and the deputy manager of Fine Machinery Factory respectively in December 1995. 被告人唐志华原为上海市东方造纸机械厂职工,1986年辞职后,先后从事个体运输、家具调剂业务。期间,唐志华与上海印刷包装机械总公司(以下简称印包公司)原总经理陆忠信等人保持了熟识的关系。三印厂是隶属于印包公司的国有企业,被告人张龙海、刘恺恺于1996年10月分别被印包公司任命为该厂的常务副厂长(主持工作)、副厂长;精工厂是印包公司与外方合资的企业上海紫光机械有限公司主管的集体企业,被告人邵先初、张勇于1995年12月分别被主管单位聘任为该厂的正、副厂长。
In June 1995, Tang Zhiqiang registered Shanghai Baoqiang Industrial Co., Ltd. (hereinafter referred to as Baoqiang Company), a private enterprise with Tang as the legal representative, in Huangdu Township, Jiading District, Shanghai Municipality, and operated it together with his wife Chen Tingchun. In order to make Baoqiang Company profitable, Tang made use of his friendship with Lu Zhongxin, et al, and exerted impacts on relevant employees in Printing and Packaging Corporation and its subsidiaries. 1995年6月,被告人唐志华在上海市嘉定区黄渡镇注册登记了以其法定代表人的私营企业上海宝强实业有限公司(以下简称宝强公司),与其妻陈廷春共同经营。为使该公司赢利,唐志华利用与陆忠信等人的熟识关系,对印包公司及其下属企业的有关人员施加影响。
After Zhang Longhai was appointed as the executive vice director of No.3 Printing Factory and was in charge of the overall work and purchase of goods of this factory, he made use of his post and induced, together with Tang Zhihua, the staff of this factory for purchasing electromotors, frequency conversion controllers and other accessories to make Shanghai Baosheng Electronic Appliance Sets Company (hereinafter referred to as Baosheng Company), Shanghai Huaguang Digital Control Co., Ltd. (hereinafter referred to as Huaguang Company), Shanghai Fuji Electronic Appliance Co., Ltd. (hereinafter referred to as Fuji Company) and Shanghai Pepperl+Fuchs Automation Co., Ltd. (hereinafter referred to as Pepperl+Fuchs Company) to continue to supply goods to No.3 Printing Factory but directly make settlement of payments with Baoqiang Company. Then Tang made settlements with No.3 Printing Factory after raising the price, and No.3 Printing Factory paid the money directly to Baoqiang Company. From January 1997 to December 1999, the aforesaid suppliers aggregately provided the 1,881,000 yuan of goods to No.3 Printing Factory, but Tang settled the aforesaid goods with No.3 Printing Factory at the price of over 2,744,000 yuan (all the payable taxes had been deducted) in the name of Baoqiang Company. According to the price appraisal conclusion issued by Shanghai Price Firm, Tang added more than 862,000 yuan by changing hands and issuing invoices with raised prices, so the extent of raised price had averagely exceeded 45% of the original price of goods. After deduction of the sales interests that the aforesaid suppliers might offer, Tang and Zhang Longhai made No.3 Printing Factory pay an extra of more than 777,000 yuan by changing hands, which was encroached on by Tang himself. 被告人张龙海当上三印厂常务副厂长以后,利用主管该厂全面工作和分管进货采购的职务便利,与被告人唐志华共同指使三印厂供应科的采购人员在采购电动机、变频控制器等配套件时,让供货方上海华盛电器成套公司(以下简称华盛公司)、上海华光数字控制有限公司(以下简称华光公司)、上海富基电气有限公司(以下简称富基公司)、上海倍加福自动化有限公司(以下简倍加福公司)在继续直接向三印厂供货的同时,改向唐志华的宝强公司结算货款,再由唐志华加价后与三印厂结算,三印厂将货款直接付给宝强公司。自1997年1月至1999年12月,上述供货单位给三印厂供货共计188.1万余元,而唐志华以宝强公司名义转手向三印厂结算上述货物的货款共计274.4万余元(均已扣除应交税款)。依据上海市价格事务所的价格鉴定结论,唐志华转开发票加价86.2万余元,加价幅度平均超过原价45%。扣除上述供货单位可能给的销售让利数额,唐志华和张龙海利用转开发票,使三印厂多支出货款合计77.7万余元,该款由唐志华占为己有。
Between January-February 1997, Tang heard that No.3 Printing Factory was carrying out a electric machinery technical renovation, he immediately sent Han Donghai, then deputy manager and engineer of Huaguang Company, to confirm it. After Han came to No.3 Printing Factory, he participated in the technical renovation together with the technical staff of No.3 Printing Factory. After that, because No.3 Printing Factory purchased and used electric machinery products and relevant accessories from Huaguang Company, Huaguang and Han did not require it to pay the remunerations to Han for his participation in technical renovation. Tang took advantage of this opportunity to require Zhang Longhai and Liu Kaikai to pay commissions for several times. From February 1997 to mid-October 1999, Zhang Longhai and Liu Kaikai were fully aware that Tang concocted various pretexts for obtaining money but still took advantage of their posts and successively gave 245,500 yuan of public money from No.3 Printing Factory for eight times to Tang through illegally inventing project service charges, wallboard processing charges and technical consultancy fees, etc. to Baoqiang Company. 1997年1-2月间,被告人唐志华得知三印厂进行电机技术改造,即介绍华光公司副总经理兼工程师韩东海前去察看。韩东海到三印厂后,参与了三印厂技术人员对电机的技术改造。之后,因三印厂购买并使用了华光公司的电机产品及配件,华光公司和韩东海均未要求三印厂支付韩东海参与技术改造的费用。唐志华借此机会,以介绍他人帮助技术改造使三印厂获利为由,多次要求被告人张龙海、刘恺恺向其支付介绍费。自1997年2月至1999年10月中旬,张龙海、刘恺恺明知唐志华巧立名目要钱,仍利用职务上的便利,采用虚列支付宝强公司工程服务费、墙板加工费、技术咨询费等名义,先后8次从三印厂支出公款24.55万元给唐志华独吞。
In order to intervene in the purchase of frequency conversion controllers and programming controllers, etc. of Fine Machinery Factory, Tang induced Shao Xianchu and Zhang Yong to illegally add a link to the purchase of goods by taking advantage of their posts in this regard, and asked Huasheng Company and Huaguang Company, original goods suppliers, to continue to supply goods directly to Fine Machinery Factory but make settlement of payments with Baoqiang Company. Then Tang would make settlement of payments with Fine Machinery Factory after increasing the price, and Fine Machinery Factory would pay the money directly to Baoqiang Company. From December 1995 to December 1999, Huasheng Company and Huaguang Company had aggregately provided more than 6,526,000 yuan of goods to Fine Machinery Factory, but Tang settled the aforesaid goods with Fine Machinery Factory at the price of over 9,678,000 yuan (all the payable taxes had been deducted) in the name of Baoqiang Company. According to the price appraisal conclusion issued by Shanghai Price Firm, Tang added more than 3,151.000 yuan by changing hands and issuing invoices with raised prices, and the extent of price rise had averagely exceeded 48% of the original price of goods. After the deduction of sales interests that Huasheng Company and Huaguang Company might have offered, Tang, Shao and Zhang made Fine Machinery Factory pay an extra of more than 2,645,000 yuan by changing hands and issuing invoices with raised prices, which was encroached on by Tang himself. 被告人唐志华为插手精工厂关于变频控制器和程序控制器等配件的采购工作,与被告人邵先初、张勇共谋,由邵、张利用主管和分管精工厂进货采购的职务便利,私自增设进货环节,让原有的供货方华盛公司、华光公司在继续直接向精工厂供货的同时,改向唐志华的宝强公司结算货款,再由唐志华加价后与精工厂结算,精工厂直接给宝强公司付货款。从1995年12月至1999年12月,华盛公司、华光公司向精工厂供货共计652.6万余元,而唐志华以宝强公司名义转手向精工厂结算上述货物的货款共计967.8万余元(均已扣除应交税款)。依据上海市价格事务所的价格鉴定结论,唐志华转开发票加价315.1万余元,加价幅度平均超过原价48%。扣除华盛公司、华光公司可能给的销售上让数额,唐志华、邵先初、张勇利用转开发票使精工厂多支出货款合计264.5万余元,该款由唐志华占为己有。
In sum, Tang Zhihua aggregately encroached on more than 3,667,000 yuan from No.3 Printing Factory and Fine Machinery Factory with the assistance of Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong. Tang only used a very small part of the said money for buying some gifts for Zhang Yong as well as for the dinners with Shao Xianchu, Zhang Yong and Liu Kaikai, etc. as the lure, and spent the remaining money on an apartment, bank deposits and securities speculation. After the criminal acts of Tang et al were found that part of money and property occupied by Tang as well as the gifts Tang sent to Zhang Yong were ferreted out. 综上,被告人唐志华通过被告人张龙海、刘恺恺、邵先初、张勇,共侵吞、侵占三印厂、精工厂的资金366.7万余元。唐志华除将其中一小部分买些礼物送给张勇,或者用于对邵先初、张勇、刘恺恺等人的吃请利诱外,其余用于购买住宅一套及在银行存款、买卖证券。案发后,唐志华处的部分款物以及唐志华送给张勇的礼物被查获。
The aforesaid facts could be affirmed by the following items of evidence: 以上事实,有下列证据证实:
1. Items of evidence for affirming the economic nature of the entities involved in this case and the status of each defendant (一)认定涉案单位的经济性质和各被告人身份的证据有:
(1) Business license of Baoqiang Company, certificates on shareholder status and capital contributions, testimonies of Chen Tingchu, as well as the confessions of Tang, which proved that Baoqiang Company was a private company of Tang and only had two shareholders, Tang and his wife Chen Tingchu; it had neither capital, operating staff, operating capacity nor business place; and both Tang and Chen had no knowledge about the purchase and supply of mechanical and electrical products and relevant accessories. 1、宝强公司的营业执照、股东身份和出资情况的证明,唐志华之妻陈廷春的证言和唐志华的供述,证明宝强公司是唐志华的私营公司,两名股东是唐志华和妻子陈廷春;宝强公司既无资金、又无经营人员和经营能力、经营场所,唐志华、陈廷春都对有关机电产品、配件的采购和供应知识一无所知。
(2) Enterprise legal person business license of No. 3 Printing Factory, Cadres Curriculum Vita as filled in by Zhang Longhai and Liu Kaikai, duty certificates and confessions of Zhang and Liu, which proved that No. 3 Printing Factory was a State-owned enterprise, and Zhang and Liu was the director and vice director of this factory respectively, and had the status of state functionaries. 2、三印厂的企业法人营业执照、张龙海和刘恺恺填写的《干部履历表》、张龙海和刘恺恺的职务证明以及二人的供述,证明三印厂是国有企业,张龙海、刘恺恺作为该厂的正、副厂长,具有国家工作人员身份。
(3) Enterprise legal person business license of Fine Machinery Factory, as well as the appointment certificates and confessions of Shao Xianchu and Zhang Yong, which proved that Fine Machinery Factory was a collectively-owned enterprise, Shao and Zhang were appointed as director and vice director of this factory respectively in December 1995, and were in charge of the supply and marketing work of this factory. 3、精工厂的企业法人营业执照、邵先初和张勇的职务证明以及邵先初、张勇的供述,证明精工厂是集体企业,邵先初、张勇于1995年12月被聘任为正、副厂长,分别主管和分管该厂的供销工作。
2. Items of evidence for affirming that Tang Zhihua and Zhang Longhai made No. 3 Printing Factory pay an extra of more than 777,000 yuan by changing hands and issuing invoices with raised price: (二)认定唐志华、张龙海采用加价转开发票的手段使三印厂多支出货款77.7万余元的证据有:
(1) Supplier's invoices issued by Baosheng Company, Huaguang Company, Fuji Company and Pepperl+Fuchs Company, invoices issued by Baoqiang Company to No. 3 Printing Factory, advanced payments drawing sheets as approved upon the signature of Zhang Longhai, as well as audit and price appraisal reports, which affirmed the fact that Tang Zhihua and Zhang Longhai made No. 3 Printing Factory pay an extra of more than 777,000 yuan by changing hands and issuing invoices with raised price. 1、华盛公司、华光公司、富基公司、倍加福公司的供货发票,宝强公司开给三印厂的发票,经张龙海签字批准的三印厂货款暂支单,审计、价格鉴定报告,证实唐志华、张龙海加价转开发票使三印厂多支出货款77.7万余元的事实。
(2) Invoices as initially issued by Baosheng Company and other suppliers to Baoqiang Company, invoices as initially issued by Baoqiang Company to No. 3 Printing Factory, as well as vouchers on the payments as initially paid by No. 3 Printing Factory to Baoqiang Company, which affirmed that No. 3 Printing Factory not only paid money in advance but also deducted payable money that should be paid for the same period, so there was still more than 90,000 yuan of money as occupied by Baoqiang Company. 2、华盛公司等供货方最初出具给宝强公司的发票、宝强公司最初出具给三印厂的发票以及三印厂最初支付给宝强公司货款的凭证证实,三印厂最初不仅付款在先,且扣除同期应付货款,尚有9万余元货款被宝强公司占用。
(3) Statements of Liu Xueming, employee of Printing and Packing Company. Liu said that: because No. 3 Printing Factory was going to change the director, and Zhang Longhai really wanted to be the director of this factory, however, it came out later that Liu Kaikai might be the director, then Zhang Longhai said to Liu Xueming that it was just because of the help of Tang Zhihua, since Liu Kaikai had a good relationship with Tang. So Liu Xueming took Zhang Longhai to Tang's home. After seeing Zhang Longhai, Tang blamed him as “not on the right way”. Liu Xueming said some words of praise for Zhang Longhai, then Tang said to Zhang Longhai that: “you should think it over later, and I have already known about this matter.” Which gave Liu Xueming and Zhang Longhai an impression that Tang is really somebody in the printing and packing industry. 3、印包公司职员刘学铭陈述:因为三印厂要换厂长,张龙海很想当,后来传出可能刘恺恺当厂长,张龙海就对我说,这肯定是唐志华在帮刘的忙,刘恺恺与唐志华关系很好。为此我带张龙海到唐志华家。唐见到张龙海后,就骂张龙海“不上路”。我在旁边帮张龙海说些好话,唐志华后来又对张龙海说:“以后你做事要拎得清点,反正这件事我有数了。”当时给我和张龙海的印象是,唐志华在印包行业挺有能量的。
Wu Youling, vice director of the Goods Supply Department of No. 3 Printing Factory, said that: at the end of 1996, Zhang Shaoxiang took him to the home of Tang Zhihua. Tang said to Wu that Liu Kaikai left his home just now and asked Wu to purchase accessories from his Baoqiang Company, and said that Zhang Longhai would take care of Wu for this matter. Two or three days later, Zhang Longhai asked Wu to his office, where Tang also stayed. Zhang said that the accessories of No. 3 Printing Factory would be purchased from Tang in the future, and asked Wu to consult with Tang for the details. Later, Zhang said to Wu that Tang would just make money from No. 3 Printing Factory at the 5% of original price and not care about any other matter. It was Wu that directly connected with Huasheng, Pepperl+Fuchs and Fuji, etc. for the quantity, delivery of goods and pick-up of goods as purchased by No. 3 Printing Factory, and Baoqiang Company just issued invoices to No. 3 Printing Factory after these suppliers issued invoices to it and it raised the price. Afterwards, the price ordered by Baoqiang Company upon changing hands became higher and higher, and the price as raised was far more than 5% of the original price. Zhang Longhai also knew this but had never asked Wu about how much the price had been raised. Wu thought that it was just because Zhang Longhai wanted himself to have a way out. Tang always told Wu that it was him that made Zhang Longhai as the director of No. 3 Printing Factory and Zhang should allow him to make money now. Tang also said such words before Zhang. Zhang blamed Wu for several times that the price ordered by Baoqiang Company was too high but never clearly told Wu how to do in the future, and still affixed his names for approving the payments as usual. 三印厂供应科副科长吴幼令陈述:1996年底,华盛公司的张少湘带我到唐志华家。唐对我说刘恺恺刚走,让我以后从他的宝强公司进配件,并说此事张龙海厂长会关照我的。过了两、三天,张龙海叫我到他的办公室去,唐志华也在。张说以后我厂的配件给唐志华做,具体事由我和唐华志商量。以后张又对我说让唐志华从我们厂赚5%,其他事他不管。我厂实要货的数量、送货、提货等,都是我直接与华盛、倍加富、富基等单位联系。这些单位将发票开给宝强公司,宝强公司只是过账后加价给我厂开发票而已。后来,宝强公司转手给我厂的价格越来越高,中间的加价远远超过了5%,张龙海对此是知道的,但到底超过多少,他从不问我。我想这是他要为自己留后路。唐志华常在我面前说,张龙海的厂长是他叫当上的,张龙海现在应该让他在生产上赚钱。这样的话,他在张龙海面前也多次说过。张龙海多次责怪我说,宝强公司开出的价格高,但他从没有明确让我以后怎样做,还是照样签字同意付款。
Zhang Shaoxiang, former chief financial officer of Huasheng Company, said that: some day after he became an acquaintance of Tang, Shao Xianchu invited him to dinner, and Liu Kaikai was also at the dinner table. During dinner time, Liu brought out a list of electric appliances to be purchased by No. 3 Printing Factory to Zhang. After seeing it, Zhang said these appliances had already been purchased from Huasheng Company via Wu Youling. Then Tang suggested to ask Wu to come here. After dinner, Zhang went to Tang's home. After Liu got through the phone, Zhang received the phone and asked Wu to come here. Tang said to Wu that the goods demanded by No. 3 Printing Factory from then on would be purchased via Baoqiang Company, and No. 3 Printing Factory directly purchased goods from Huasheng Company, but the invoices should be issued by Baoqiang Company. 华盛公司原财务主管张少湘陈述:认识唐志华后,有一天邵先初来电约我吃饭,在饭桌上还有三印厂的副厂长刘恺恺。吃饭中,刘厂长拿出一份三印厂要采购电器的清单让我看。我看后说,这些产品已经在同你们做了,具体联系人是吴幼令。唐就说让把吴叫来。饭后到唐家,刘恺恺打通电话后,我接过电话让吴来。唐对吴说,三印厂今后的业务就让他宝强公司做,三印厂要电器直接向华盛进货,但发票要通过宝强公司开。
Han Donghai, employee of Huaguang Company, said that: after Huaguang conducted transactions with Fine Machinery Factory, Tang said there was a batch of unqualified motors in No. 3 Printing Factory and asked Han to find a solution. After Han came to No. 3 Printing Factory, it successively changed original accessories into the accessories of Huaguang, thus, Huaguang became a supplier of No. 3 Printing Factory, and Tang was the middleman. In actual transactions with No. 3 Printing Factory, Tang was very bold and often scolded Zhang Longhai and Liu Kaikai at will, and Zhang and Liu were under his instructions. Tang knew nothing about the price of motors and always asked Han about the market price of the motors, but Tang always imposed a very high price to No. 3 Printing Factory. Huaguang supplied a small cable to Tang at the price of just over 600 yuan, which was quoted by the Ministry of Economic and Trade Cooperation, but Chen Tingchun quoted more than 1,000 yuan for it. When Wu Youling asked them for the price, Tang responded that: “you, a common employee, has no right to consult the price with me.” Baoqiang Company only obtained money from No. 3 Printing Factory, and Huaguang suffered no loss. 华光公司职员韩东海陈述:我公司和精工厂发生业务关系后,唐志华说三印厂有一批马达质量不过关,叫我想办法。我去后,三印厂陆续更换零件,全部用我公司的产品,我公司就成为三印厂的供应商,唐志华作为中间商。在实际与三印厂做业务中,唐口气很狂,张龙海、刘恺恺被他随便骂,叫怎么做就得怎么做。唐对马达的价格一窍不通,他都是来问我市场价是多少。他转手开给三印厂的价格很高。我们给唐一根小电缆,经贸部600余元,陈廷春开出价是1000余元。业务员吴幼令去问他们,唐对吴幼令说:“价格问题,你业务员无权来和我说。”宝强公司赚的三印厂的钱,我公司没有损失。
Tang Kai, general manager of Fuji Company, said that: Fuji established a commercial relationship with No. 3 Printing Factory at the beginning of 1996. After carrying out two or three transactions, Wu Youling said to Tang, et al, that: for future transactions, the invoices should be issued to Baoqiang Company. After that, Wu always offered the type and quantity of products, Fuji delivered goods to No. 3 Printing Factory, and Wu collected invoices from Baoqiang Company and then submitted them to Tang. Fuji had no idea about what nature Baoqiang Company was and who was the boss of Baoqiang Company even by now. 富基公司总经理汤凯陈述:我公司同三印厂在1996年初就建立了业务关系。发生了两、三笔业务后,吴幼令对我们说:今后的业务,要将发票开给宝强公司。以后,都是先由吴报来产品的型号、数量,我们送货到三印厂,发票交给吴幼令,由吴去向宝强公司收取支票再交给我。到现在,我们连宝强公司是什么性质的公司、老板是谁也不清楚。
Tu Jian, employee of Pepperl+Fuchs Company, said that: before conducting transactions with Tang, No. 3 Printing Factory had a commercial relationship with Pepperl+Fuchs. At the end of 1996, Tu saw Tang for the first time. Tang said that he had a close relationship with Printing and Packing Company and he would order goods and send payments later, but the goods should be directly sent to the user entity later. Tu agreed to it. Tang suggested that Baoqiang Company wanted to deputize all the business of Pepperl+Fuchs with those clients in the printing and packing industry that had business relations with Pepperl+Fuchs as well as those that would have business relations with Pepperl+Fuchs, and asked Pepperl+Fuchs to give the authority of agency to Tang. 倍加福公司职员屠健陈述:在唐志华之前,三印厂已同倍加福有业务往来。1996年底,我第一次见到唐志华。唐说他与印包公司的关系密切,以后由他订货、送货款来,但货物要由我们直接送给使用单位。我答应了。唐提出,印包行业凡是以前与我公司有业务往来的、包括以后要发生关系的客户,都要由宝强公司来代理,让我们给他代理权。
(3) Statements of witness Chen Tingchun. Chen said that all the deals of No. 3 Printing Factory was negotiated by Tang from the very beginning. Huasheng, Fuji and Pepperl+Fuchs were former suppliers of No. 3 Printing Factory and were introduced to Chen by Wu Youling. As a general rule, Wu notified the demands to the supplier, the supplier directly delivered goods to No. 3 Printing Factory. However, the invoices were firstly sent to her home by Wu, and Chen issued invoices to No. 3 Printing Factory by changing hands, then No. 3 Printing Factory made payments, and the payments sometimes were delivered to the suppliers via Wu. It was Chen that decided the price in general. 3、证人陈廷春陈述:三印厂的业务开始都是由唐志华谈的。华盛、富基、倍加福原来就是三印厂的供货单位,是吴幼令将这几家介绍给我的。一般都是由吴将需求通知供货单位,供货方直接将货送到三印厂,发票则由吴幼令送到我家。我转开发票给三印厂,再由三印厂付款,货款有时也通过吴转交给供货方。价格基本都是由我定的。
(4) Confessions of Zhang Longhai after his criminals acts were found out. Zhang confessed that: in January 1996, he went to Tang's home together with Liu Xueming. Tang said that he was familiar with many leaders in the printing and packing industry in a presumptuous tone. In summer 1996, Tang invited Zhang to his home and required Zhang to allow him purchase goods for No. 3 Printing Factory. Zhang agreed to it and consulted with Tang that Tang could only obtain a profit of 5% of the original price. Zhang thought that since Tang was familiar with many leaders, if Tang could purchase goods for No. 3 Printing Factory, it would be beneficial for him, and if he had any trouble in the future, Tang could help him through the upper-level leaders. At the end of 1996, Tang came to No. 3 Printing Factory, Zhang asked Wu Youling to directly talk with Tang about the purchase of goods, and told him that the goods of No. 3 Printing Factory would be purchased by Tang in the future, and Tang would make profit at 5% of the original price. Actually, Tang obtained money from No. 3 Printing Factory. Because Zhang considered that Tang had a good relationship with his upper-level leaders, and in order to keep his position, Zhang dare not break off the relationship with Tang, which made the State-owned assets suffer a great loss. 4、被告人张龙海到案后供述:1996年1月,我与刘学铭去唐志华家,唐说他认识印包行业的许多领导,当时他口气很大。同年夏天唐约我去,提出要我将三印厂的进货给他做。我同意了,但我与他说好,他只能赚我厂5%。我想,他认识公司很多领导,我将厂里的进货业务给他做,对我是有好处的。如果我今后有事,他总能通过上层领导帮帮我的忙。1996年底,唐志华三到印厂,我就将吴幼令叫来,要唐直接同吴谈。事后我关照吴,以后我厂的进货业务给唐做,让唐直接在中间赚5%。以后事实上是唐志华赚了我厂的钱。因为我考虑到唐同我的上级领导关系都很好,为了保住自己的位子,所以不敢断绝与唐的业务,因此使国有资产损失不少。
Confessions of Tang Zhihua after his criminal acts were found out. Tang confessed that: at the end of 1995, Liu Xueming and Zhang Longhai came to his home because the then director of No. 3 Printing Factory would be transferred to another post, Zhang wanted to take the place of the director and take charge of work. They knew that Tang had a close relationship with the leaders in the printing and packing industry. Tang promised that he would say good words for Zhang before the leaders. At the beginning of 1996, Zhang was appointed as the executive vice director of No. 3 Printing Factory and took overall charge of the routine work. When it came to the second half of 1996, the business of No. 3 Printing Factory became larger and larger, and Tang came to Zhang and requested Zhang to let him supply electric appliances. Because Zhang had ever promised that he would let Tang make some money if he could be appointed as the director of No. 3 Printing Factory and the factory could make money, so when Tang make the request, Zhang consented to it immediately, and let Tang contact with Wu Youling. He also told Tang that he would have Wu to do the specific work. Whether Zhang knew the truth or not, he should be grateful to Tang for his promotion. It was a fact that Zhang was promoted after he pleaded Tang. As to the purchase of goods for No. 3 Printing Factory, Tang only issued invoices and transferred accounts. Because the price was raised too much later, Wu was not satisfied. Tang had ever told Wu for several times that: “Don't make a fuss if I make some money from your plant. Your factory director was appointed because of me, and it was me that made him as the director. You could tell Zhang about the price.” It was just as expected that Zhang did nothing after Wu made a report on the price. 被告人唐志华到案后供述:1995年底,刘学铭陪张龙海到我家,因当时三印厂厂长要调离,张龙海想当厂长主持工作。他俩知道我与印包公司的领导关系密切。我答应为张在公司总经理处说好话。1996年初,张龙海被任命为三印厂常务副厂长,全面主持工作。到了1996年下半年,三印厂生意好起来了,我去三印厂找张龙海,提出电器供货由我来做。因为以前张龙海托我时说过,他当了厂长后三印的业务好了,也让我赚点钱。所以我这次找他,他当场就答应了我的要求,并叫我找吴幼令联系,具体他会向吴布置好的。不管张龙海是否知道真相,他在当厂长这件事上是应该感激我的。他托了我,结果就当上了,这是事实。在与三印厂的生意上,我们仅仅是开票转账而已。由于后来加价多了,吴幼令不满意。我曾几次对吴说:“我赚你厂的钱又怎样?你们的厂长也是我搞定的,我让他做的。关于价格问题,你回去与张讲就是了。”果然,吴向张龙海汇报后,没有下文。
(3) The evidence for affirming that Tang Zhihua, Zhang Longhai and Liu Kaikai embezzled 245,500 yuan of public money of No. 3 Printing Factory by illegally inventing various kinds of expenses: (三)认定唐志华、张龙海、刘恺恺虚列各种费用贪污三印厂公款24.55万元的证据有:
a. Audit appraisal report and advance payment voucher as handled by or approved upon signature of Liu Kaikai and Zhang Longhai, which proves that No. 3 Printing Factory had aggregately paid 245,500 yuan in the name of various service charges to Baoqiang Company. The testimonies of Ren Xuefeng and Han Yumei, financial staff members of No. 3 Printing Factory, also affirmed that the aforesaid expenses had been paid to Baoqiang Company exactly. 1、审计鉴定报告和有刘恺恺、张龙海经办或审批签字的付款暂支单,证实三印厂支付给宝强公司的各类服务费金额合计24.55万元;三印厂财务科工作人员任雪峰、韩毓妹的证言,也证实上述款项均已如数支付给宝强公司。
b. Statements of Han Donghai, employee of Huaguang Company. Han stated that he had participated in the technical renovation, but he had never contacted with No. 3 Printing Factory, and did not know that No. 3 Printing Factory had paid 245,500 yuan to Baoqiang Company in the name of technical service charges. 2、华光公司职员韩东海陈述:他参与三印厂的技术改造,从未与三印厂交涉过,也不知道三印厂为此还以技术服务费的名目给宝强公司支付过24.55万元。
Statements of Wang Dejun, employee of Huaguang Company. Wang stated that Han had participated in the technical renovation of No. 3 Printing Factory, because No. 3 Printing Factory need to use the products of Huaguang in the future, Han should help No. 3 Printing Factory to improve the quality of these products, so it was impossible to separately pay technical service charges to Han. 三印厂职工王德钧陈述:三印厂进行技术改造,韩东海来参与帮助。因为以后要使用华光公司的产品,韩有责任帮助三印厂改进这些产品的质量,故不可能再向韩东海支付技术服务费。
c. Confessions of Zhang Longhai after his criminal acts were found out. Zhang confessed that: at the beginning of 1997, Tang referred Han to No. 3 Printing Factory for jointly finding a solution to the quality of automatic screen printing machines. Afterwards, No. 3 Printing Factory began to use the accessories of Huaguang Company. In April 1997, Liu Kaikai said that Tang would collect consultancy charges from No. 3 Printing Factory. Then Liu gave the invoices issued by Baoqiang Company for collecting technical consultancy charges from No. 3 Printing Factory to Zhang for signature, so Zhang affixed his name on it. The said charge was 20,000 yuan for the first time, and No. 3 Printing Factory had paid technical consultancy charges to Tang for seven or eight times, and all the invoices were brought to Zhang by Liu, and the total amount should be more than 200,000 yuan. As a general rule, Tang would issue invoices at first, and the amount on the invoices was decided by Tang at will and there was no specific basis for it. 3、被告人张龙海到案后供述:1997年初,唐志华介绍韩东海来我厂共同研究解决全自动筛网印刷机质量,以后我们就使用华光供应的配件。1997年4月,刘恺恺说唐志华要向我厂收取咨询费。当时刘就取出宝强公司开出的收我厂技术咨询费的发票让我签字,我就签了。第一次是2万元。我总厂共支付过7-8次技术咨询费,是刘恺恺拿来发票我签字的,总数有20万余元。每次都是唐志华事先开好发票,数额也是由他随意定的,并无依据。
Confessions of Liu Kaikai after his criminal acts were found out. Liu confessed that: When Liu transferred from Xinxiang Plant to No. 3 Printing Factory in 1993, he had ever pleaded Tang for help. Tang said that he had talked it with Lu Zhongxin, general manager of Printing and Packing Corporation, and the decision had been made, and Tang also asked Liu to disburden his mind. Afterwards, Liu was easily transferred to No. 3 Printing Factory. At the beginning of 1997, Liu mentioned to Tang that the electric machines of No. 3 Printing Factory had to be repaired regularly. Then Tang sent Han Donghai to find a solution jointly, and No. 3 Printing Factory also began to use the products of Huaguang Company. In February 1997, Liu mentioned that the machines of No. 3 Printing Factory sold well for the time being at Tang's home. Tang required No. 3 Printing Factory to give some money to him. Liu said that it was possible to issue some invoices in the name of construction services, and he would consult with Zhang Longhai about it. Later Tang issued invoices to Liu. After going back to work, Liu said to Zhang that the invoices for the money as demanded by Tang were issued. Several days later, Zhang asked Liu to sign the invoices and send them to Tang, and Liu did it accordingly. The construction service charges had nothing to do with the electric machinery renovation, and it was just thought out by Liu so as to draw the money from No. 3 Printing Factory and give it to Tang. There were totally eight sums of money and the total amount should be 230,000 yuan or so. As a fact, both Liu and Zhang had known from the beginning that it was a mistake to transfer the money of No. 3 Printing Factory to Baoqiang Company in the name of technical service charges, and were afraid of being held to be responsible in the future. 被告人刘恺恺到案后供述:我在1993年从新祥厂调到三印厂过程中,曾经要唐志华帮忙。唐说,他已与印包公司总经理陆忠信谈过并且已定下来了,让我放心。事后,我顺利调入了三印厂。1997年初,我就对唐说起我厂的电机经常要修,以后唐就介绍韩东海来参与解决,我厂也开始经宝强公司转手用了韩的公司的产品。1997年2月在唐家,我说目前厂里机器销路蛮好。唐就提出让三印厂拿点钱出来。我说可以以工程服务的名义开点发票来,同张龙海讲好。后来唐就开了发票给我。上班后我对张龙海说:唐志华要钞票的发票开来了。过了几天,张龙海关照我把支票开好送去,我就开了支票送过去了。这个工程服务费同电机改造实际上是一点不搭界的,这是我个人想出来的,实际上是将这些钞票从厂里领出来给唐志华。从第一笔开始到结束共8次,总金额在23万元左右。其实我同张龙海一开始就知道,以技术服务费名目将企业资金划给唐的宝强公司,是一件错事,各自心里比较虚,担心今后被追究责任。
Confessions of Tang Zhihua after his criminal acts were found out. Tang confessed that: at the beginning of 1997, Tang learnt that there were some problems in the electric machinery of No. 3 Printing Factory and thus contacted Han Donghai to No. 3 Printing Factory for technical renovation. Once when he was at Tang's home, Liu Kaikai said that the performances of No. 3 Printing Factory were good for the time being, and Tang took the opportunity to require Liu to allow him make some money. Liu thought out an idea for Tang and asked Tang to issue some invoices in the name of construction service charges, but said that it should be subject to the consent of Zhang Longhai. Liu's words reminded Tang, and Tang took the opportunity of recommending Han to No. 3 Printing Factory to demand money from it. On the next day, Tang called Zhang and said that he had recommended Han to transform the 720 electric machinery, now the problem was solved, and thus demanded Zhang to give some money to him in the name of technical service charges. Zhang hesitated for a moment and consented to it. Tang let Liu take the invoices back. Afterwards, Tang issued invoices in the name of technical service charges and took money from No. 3 Printing Factory for several times. In the second half of 1999, Zhang knew that the leaders of Printing and Packing Company were in trouble and was very upset, and asked Tang to conclude a supplementary agreement on technical service charges. Zhang had wanted to stipulate that he did not give money to Tang according to the agreement. Zhang was afraid of being found out. However, at that time, Tang was busy with the problem encountered by the leaders of Printing and Packing Company and did not put this matter in mind at all. Tang replied to Zhang that there was no problem, and the said supplementary agreement was not signed at last. 被告人唐志华到案后供述:1997年初,我得知三印厂电机方面存在一些问题,就联系韩东海去三印厂搞技术改造。以后有一次在我家,刘恺恺说厂里效益好了,我就提出弄点钞票给我用用。刘恺恺给我出主意,要拿钞票只有以工程服务费名义,你可以开发票过来,不过要经张龙海同意。刘这话提醒我,正好借介绍韩东海的名义向三印厂要钱。次日,我打电话给张龙海,说我介绍韩东海改造720电机,现在生意好了,以技术服务费名义开点钞票给我。张迟疑了一下答应的。我叫刘将发票带回去。之后,我还多次借技术服务等名义开票从三印厂拿了几笔钱。1999年下半年,张龙海得知公司领导出事,当时他很紧张,叫我就技术服务费一事补签一份协议。他的意思是没协议给我钱,恐怕要出事。但当时我正在忙印包公司领导的事,根本没把这件事放在心上。我回答张没事,协议也没签。
d. Statements of witness Chen Tingchun. Chen said that: Tang had ever referred Han to No. 3 Printing Factory for technical renovation, so Tang had the chance to demand money from No. 3 Printing Factory, and furthermore, Tang had actually demanded a lot of money from that factory irregularly from March 1997 to October 1999. Once No. 3 Printing Factory made money, Tang would intake some money, sometimes more and sometimes less, with a maximum of 50,000 yuan. Tang often demanded money with the amount of 20,000 yuan up to 30,000 yuan, and Liu Kaikai asked Chen to issue invoices accordingly, so as to take the said money into the cost of No. 3 Printing Factory's accounts. Tang and Chen just wanted to get money and did not care how to issue invoices at all. 4、证人陈廷春陈述:唐志华曾介绍韩东海为三印厂改进技术。有了这个事实,我们就有借口向三印厂要钱,而且确实要到不少。这事发生在1997年3月到1999年10月,是不定期的,反正三印厂效益好了,我们就去收一点钱,有时多有时少,最多的一次是5万元,大部分是2万至3万元,发票是刘恺恺叫我这样开的。目的是他们厂在财务上可以打进成本。我与唐志华的目的是要拿到钱,至于发票怎样开,我们无所谓。
(4) of the evidence for affirming that Tang Zhihua, Shao Xianchu and Zhang Yong made Fine Machinery Factory pay an extra of more than 2,645,000 yuan by changing hands and issuing invoices with raised price (四)认定唐志华、邵先初、张勇采用加价转开发票的手段使精工厂多支出货款264.5万余元的证据有:
a. Supplier's invoices of Huasheng Company and Huaguang Company, invoices issued by Baoqiang Company to Fine Machinery Factory, goods receipt vouchers and payment vouchers separately approved upon signature of Shao Xianchu and Zhang Yong, check the counterfoils signed by Tang and Zhang Yong, as well audit report and price appraisal report. They affirmed that Tang Zhihua, Shao Xianchu and Zhang Yong made Fine Machinery Factory pay an extra of more than 2,645,000 yuan by changing hands and issuing invoices with raised price. 1、华盛公司、华光公司的供货发票,宝强公司开给精工厂的发票,经邵先初、张勇分别签字认可的收料单、付款凭单,唐志华、张勇签字的付款支票存根,审计报告和价格鉴定报告,证实唐志华、邵先初、张勇通过加价转开发票,使精工厂多支出货款合计264.5万余元。
b. Statements of Lü Chengji, purchasing agent of Fine Machinery Factory. Lü stated that: he specifically took charge of purchasing electric appliances for his factory. During the period from 1994 to 1995, Shao asked Lü not to purchase frequency converters any more, and told Lü that Electromechanical Bureau had such products to sell. Later Lü had never purchased frequency converters again and Shao did it by himself. 2、精工厂的采购员吕诚吉陈述:我具体负责我厂电气方面的采购工作。约1994年至1995年间,邵先初让我今后不要再采购变频器,说机电局有人要卖。后来我就不采购变频器,由邵先初去购买。
Statements of Zhang Shaoxiang, former chief financial executive of Huasheng Company. Zhang stated that Huasheng Company had a commercial relationship with Fine Machinery Factory from 1992, since the specifications and models of programming controllers and transducers were complex and the prices thereof were higher, it was Shao Xianchu that purchased them from Huasheng. At the end of 1995, Shao said to Zhang that the invoices for the goods Huasheng sold to Fine Machinery Factory should be issued to Baoqiang Company. Therefore, the sales invoices that Huasheng should issue to Fine Machinery Factory were actually issued to Baoqiang Company. However, although Baoqiang Company intervened in the business, it was still Shao that ordered goods from Huasheng. Huasheng delivered goods directly to the warehouse of Fine Machinery Factory upon the request of Shao, and the warehouse signed for receipt of these goods, then Huasheng gave the invoices issued to Baoqiang Company that were packed by envelops to Shao. Shao would give the payment checks issued by Baoqiang Company to Huasheng Company. 原华盛公司财务主管张少湘陈述:我公司从1992年开始与精工厂有业务往来。由于程控器、变频器的规格、型号复杂,价格较高,所以都是邵先初来我公司采购。1995年底邵对我说,以后卖给精工厂的货,发票要开给宝强公司。从此,华盛公司给精工厂的销售发票就开给宝强公司了。宝强公司虽然插进来,但是向我公司要货的还是邵先初。我根据邵的要求将货直接送到精工厂仓库,由仓库签收,再将我公司开给宝强公司的发票用信封封好交给邵先初。邵会将宝强公司的付款支票交给我公司。
Statements of Yang Jian, employee of Huaguang Company. Yang said that: before 1996, Huaguang Company supplied goods to Fine Machinery Factory directly. Afterwards, Zhang Yong asked Yang to pay a visit to Tang's home. Tang explicitly required Huaguang Company to sell goods to Fine Machinery Factory via Baoqiang Company, but the goods would still be delivered to Fine Machinery Factory directly. Yang consented to it. The price of goods sold to Baoqiang Company was the buying price of Huaguang plus 3% of profit. Such transactions had been carried out by the end of 1999. After three years of contacts, Yang thought that Tang just made use of the value-added invoices of Baoqiang Company for accounting purposes, and Tang had no additional work to do but could make money by issuing invoices. 华光公司职员杨健陈述:1996年以前,我公司向精工厂直接供货。以后,张勇叫我去过唐志华家。唐明确要求我公司向精工厂的供货要由宝强公司转手卖给精工厂,货却直接由我公司送到精工厂,我答应了。价格是以我公司的进货价加3%利润卖给宝强公司,这样一直做到1999年底。经过三年的接触,我认为唐志华只是利用宝强公司的增值税发票走账而已。他根本不用出力,凭转开发票从中赚钱。
c. Confessions of Zhang Yong after his criminal acts had been found out. Zhang confessed that: He was a former colleague of Tang. In 1995, when the plant where Zhang worked planned to sell the land, and Zhang was very anxious for the transfer of his job, Tang helped Zhang by pleading the manager of Ziguang Company. After the interview, Zhang was appointed as vice director of Fine Machinery Factory, so Zhang was grateful to Tang for this matter. Shao became familiar with Tang via Zhang. When Tang sold goods to Fine Machinery Factory, he always required the payments before the delivery of goods. Sometimes when Tang lacked money for purchasing goods, Fine Machinery Factory had ever lent money to Tang. Because Fine Machinery Factory purchased goods from Tang with a high price, in order to avoid purchasing agents from knowing it, it was handled by Zhang himself under the arrangement of Shao. 3、被告人张勇到案后供述:我和唐志华以前是同事。1995年时,我所在的厂要卖地皮,我为工作调动的事很着急,唐志华帮我找了紫光公司的经理。通过面试,我被聘到精工厂当副厂长,为此我很感激唐志华,邵先初通过我认识了唐志华。唐志华把货卖给精工厂,都是要求先付款再提货。有时他进货缺钱,精工厂也给他借过款。因为我们从唐志华处是高价进货,为了避免让采购员知道,所以由我亲自经办,这是邵先初安排的。
Confessions of Shao Xianchu after his criminal acts had been found out. Zhang confessed that: in October 1995, Zhang Yong referred him to Tang, and he had more and more contacts with Tang after that. At some night before the end of 1995, Tang called Shao to come to his home and said that he had no channels for purchasing goods, and asked Shao to introduce the original sellers of Fine Machinery Factory to him. Shao found Zhang Shaoxiang and told that Baoqiang Company would first purchase goods from Huasheng and then sell goods to Fine Machinery Factory. Shao was in charge of the purchase of the first batch of goods: he made payments to Baoqiang Company at first, which made settlement of payments with Huasheng afterwards, however, the goods were directly delivered to Fine Machinery Factory by Huasheng. Shao arranged Zhang Yong to be specifically responsible for such transactions later. When Shao concluded aforesaid transactions with Tang, he just wanted to be a friend with Tang and then made use of him. 被告人邵先初到案后供述:1995年10月,张勇带我认识了唐志华,以后接触较多。1995年底的一天晚上,唐志华打电话要我去他家,说他没有进货渠道,要我把我厂原来的进货单位介绍给他。我就找了华盛公司的张少湘,说明宝强公司先从华盛公司进货、再卖给精工厂。第一批生产由我出面,货款先由我付给宝强,宝强再与华盛结算,送货却由华盛直接送来。以后我都交给张勇具体操办。我与唐志华做生意,当时内心是想和他交朋友,利用他。
Confessions of Tang Zhihua after his criminal acts had been found out. Tang confessed that: Zhang Yong was an old colleague of his, and always came to his home to play mahjong. Tang came to know Shao via Zhang Yong. After that, Shao often came to Tang's home for the game, and Zhang Yong also had dinner at Tang's home for a long period of time. Tang had ever boldly said that he made Shao as the director of Fine Machinery Factory. Shao and Zhang also believed what Tang had said, so they wanted to flatter Tang and let Tang make money. There was a time when Shao came to Tang's home and took out some electric appliances as demanded by Fine Machinery Factory to Tang and suggested that Tang could conclude some transactions with Fine Machinery Factory. After Tang saw those products, he said that he knew nothing about it. Shao was clear about what Tang had said and told Tang that it did not matter, the supplier was the former seller of Fine Machinery Factory, and he would accompany Tang to visit it. Then Huasheng would deliver goods to Fine Machinery Factory after contacting Shao, and Baoqiang Company issued invoices and made settlement of payments with Fine Machinery Factory. The goods Tang purchased from Huasheng were completely decided by Fine Machinery Factory. Upon the recommendation of Zhang Yong, Huaguang Company, a subsidiary of Printing and Packing Company, became a supplier of Tang. In the transactions with Fine Machinery Factory, Baoqiang only issued invoices. At that time, Tang really believed that such acts were irregular since Fine Machinery Factory introduced its suppliers to him and paid more money for buying goods and just let him make money from it. Tang also knew that the money he made was not from Shao or Zhang but from Fine Machinery Factory. 被告人唐志华到案后供述:张勇是我以前的老同事,平时经常来我家玩麻将,通过张勇又认识了邵先初,以后邵经常来我家玩,张勇也长期在我家吃饭。我曾多次在外吹嘘,邵先初当厂长是我搞定的,邵、张也相信我的话,因此他们要巴结我,让我赚钱。有一次邵来我家,拿出一些他厂需要的电器让我看,说我可以与他做这些生意。我看后说,这个生产我不懂。邵很明白我的意思,说不懂不要紧,供货商就是他们一直在做的上家,他陪我去联系。以后经邵接头,华盛公司再送货到精工厂,就由宝强公司开票向精工厂结算。我们向华盛公司进哪些货,完全是根据精工厂的意思。经张勇介绍,印包公司下属的华光公司也成了我的上家。在与精工厂的生产往来中,我公司只是开开票而已。当时我确实认为这是不合常规的。精工厂将他们原来的上家介绍给我,明明可以少花钱就买到的货现在却人为地多花钱,这是让我从中赚钱。我清楚这钱不是他们自己的,我赚的精工厂的钱。
d. Statements of Chen Tingchun. Chen said that Baoqiang Company was a private enterprise of hers and Tang's, the 500,000 yuan of registered capital was invented and they did not make any contribution at all. Baoqiang did not have a business place, and Chen just issued invoices and checks at home. After Baoqiang was established, Tang always asked his friends to do business with him. Once when she was at home, Tang and Shao talked about doing business together, and Shao consented to purchasing transducers and programming controllers via Baoqiang. To be honest, She and Tang had no knowledge of such electric appliances. Therefore, Shao always instructed her how to issue invoices, and how to add money to the price Huasheng offered to Baoqiang and then ordered the price to Fine Machinery Factory. Huasheng would deliver goods directly to Fine Machinery Factory, and give invoices to Shao, then Shao would gave Huasheng's invoices to her. She changed hands and issued invoices with raised price to Fine Machinery Factory again. Because this business was introduced by Shao and Zhang, they had no doubt about it from the beginning to the end. Since the money made by Baoqiang was not from Shao or Zhang but from Fine Machinery Factory, so they did not care about it. 4、证人陈廷春陈述:宝强公司是我与唐志华的私营企业,所谓50万元注册资金是虚假的,没有实际出资。宝强公司没有其他的经营场地,就是我在家里开开发票、支票。宝强公司成立后,唐志华就经常要朋友给他生产做。一次在我家里,唐与邵先初谈起要做生意,邵答应精工厂的变频器、程控器通过宝强公司进货。讲实话,我和唐志华对这类电器根本不懂。所以,邵经常教我如何开发票、如何在华盛开给宝强公司的发票价格的基础上再加价给精工厂开发票。华盛公司会将货直接给精工厂送去,把发票交给邵先初,邵再把华盛公司的发票给我,由我转开发票给精工厂。因为这些业务本来是他们给我们介绍的,所以从开始同精工厂做生意到结束,邵、张都没有提出过任何疑问。反正宝强公司赚的不是他们自己的钱,而是企业的钱,所以他们无所谓。
d. Invoices initially issued by Huasheng Company to Baoqiang Company, invoices initially issued by Baoqiang Company to Fine Machinery Factory, as well as the payment vouchers initially issued by Fine Machinery Factory to Baoqiang Company. They affirm that Fine Machinery Factory always paid money before purchasing goods from Baoqiang, and Baoqiang still occupied tens of thousand yuan of Fine Machinery Factory's money after the deduction of the payments Baoqiang had paid to Huasheng for the same period. 5、华盛公司最初出具给宝强公司的发票、宝强公司最初出具给精工厂的发票以及精工厂最初支付给宝强公司货款的凭证证实,精工厂从宝强公司进货都是先付款,扣除宝强公司同期支付给华盛公司的款项,精工厂尚有数万元被宝强公司占用。
II. On the Crime of Embezzlement 二、关于受贿罪
When Shao Xianchu served as the director of Fine Machinery Factory from the beginning of 1998 to September 1999, he took advantage of his post and successively accepted 21,500 yuan of bribes, 1,800 yuan of Electronic Payment Cards (EPC) as well as 1,500 yuan of IC boarding cards and other property, totaling 24,800 yuan, respectively from Gu Guoqiang, owner of the private enterprise Shanghai Jingshan Machinery and Electric Appliance Co., Ltd., Ding Huilai, owner of the private enterprise Yuyao Fang Bridge Printing and Mechanical Parts Factory of Zhejiang Province, and Chen Jianhua, contractor of Zhangjiagang Textile Auxiliary Machine Plant of Jiangsu Province. 被告人邵先初自1998年初至1999年9月间,利用担任精工厂厂长的职务便利,先后收受业务往来单位上海精山机械电器有限公司私营业主顾国强、浙江省余姚市方桥印刷机械配件厂私营业主丁惠来、江苏省张家港市纺织辅机厂承包人陈建华分别贿赂的2.15万元及金额为1800元的电子消费卡、金额为1500元的IC乘车证等财物,合计受贿2.48万元。
The aforesaid facts could be affirmed by the following items of evidence: 证实以上事实的证据有:
1. Statements of Gu Guoqiang. Gu said that Shanghai Jingshan Machinery and Electric Appliance Co., Ltd. accepted the authorization of Fine Machinery Factory in 1999 for processing products with a trading volume of 1,500,000 yuan. During that period, he had ever given 8,000 yuan of cash as well as 24 EPCs with the value of 100 yuan per card to Shao. 1、顾国强陈述:1999年,上海精山机械电器有限公司受精工厂的委托加工产品,业务量为150万元。期间,我曾送给邵先初现金8000元及每张价值100元的电子消费卡24张。
2. Statements of Ding Huilai. Ding said that he had ever given 125,000 yuan of cash as well as 3 boarding cards with the vale of 500 per card to Shao from the beginning of 1998 to the autumn of 1999 for the business that his factory processed products for Fine Machinery Factory. In January 2000, when Shao heard that the son of Ding was going to marry, he gave 1,000 yuan to him as gift. In the past contacts with Shao, Shao had sent two bottles of wine to Ding. 2、丁惠来陈述:为我厂给精工厂加工产品一事,我于1998年初至1999年秋一共给了邵先初1.25万元和每张价值500元的3张乘车证。2000年1月,邵得知我儿子结婚,给了我1000元礼金。在过去的交往中,还送过我两瓶酒。
3. Statements of Chen Jianhua. Chen said that his factory had ever processed products for Fine Machinery Factory. In September 1999, after dinner in Kunshan, Shao Xianchu took a woman into a room, and after he waited over an hour at the entrance of the lane, Shao and that woman came out, and Shao asked him to bring out 2,000 yuan, and he gave 2,000 yuan to Shao. 3、陈建华陈述:我厂为精工厂外发加工生产产品。1999年9月,邵先初到昆山吃完饭后,带一个女的进了一个房间。我在弄堂口一个多小时后,邵和那女的出来,邵叫我拿2000元出来,我就将2000元交给了邵先初。
4. Statements of Sun Xiaoqi, an jobless young woman. Sun said that she provided sexual services in a restaurant of Kunshan. Since she knew Shao Xianchu, Shao came to see her for more than 10 times. Once when she and Shao had sexual relations in Kunshan, Shao called that person from Zhangjiagang City to come over, and that person gave her 2,000 yuan and also said it was just a gift to her for meeting her for the first time. 4、无业女青年孙晓琦陈述:我在昆山一酒家做小姐。搭识邵先初后,邵来昆山找我有10多次。一次在昆山我和邵先初发生性关系后,邵打电话叫张家港那个人来,那个人就送给我2000元,说这是见面礼。
5. Confessions of Shao Xianchu. Shao confessed that he had ever accepted from Gu Guoqiang 8,000 yuan of cash and 18 EPCs with the vale of 100 per card that could be used in Hualian Supermarket. Gu gave them to him as the expenses for him to introduce businesses. He had ever accepted 12,500 yuan of cash and 3 boarding cards with the value of 1,500 yuan from Ding Huilai. When the son of Ding married, he gave 1,000 yuan. The 2,000 yuan was the gift of Chen Jianhua to Sun Xiaoqi for meeting her for the first time. 5、被告人邵先初供述:我在顾国强处先后收受8000元和华联超市的电子消费卡18张,每张100元。这是顾希望我帮助介绍业务,作为开销费用给的。我在丁惠来处收受了1.25万元和三本乘车证,价值1500元。丁惠来的儿子结婚,我送了1000元。陈建华的2000元,是他说要给孙晓琦的见面礼,孙就收下来了。
The aforesaid items of evidence had been cross-examined at the court trial and could be the basis for affirming the facts of this case. 以上证据均经庭审质证,可以作为认定本案事实的根据。
It was also found that: before the investigation organ adopted coercive measures on Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong, they had already confessed their criminal acts to the discipline inspection organ. 另查明,被告人张龙海、刘恺恺、邵先初、张勇均在侦查机关对其采取强制措施前,就向纪律检查机关交代了自己的问题。
The No. 1 Intermediate People's Court of Shanghai Municipality held that: 上海市第一中级人民法院认为:
Article 271 of the Criminal Law prescribes that: “Any employee of a company, enterprise or any other entity who, by taking advantage of his position, unlawfully takes possession of the money or property of his own entity, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years, and may also be sentenced to confiscation of property”. “If an employee who is engaged in public service in a State-owned company, enterprise or any other State-owned entity or if a person who is assigned by a State-owned company, enterprise or any other State-owned entity to a company, enterprise or any other entity that is not owned by the State to engage in public service commits the act mentioned in the preceding paragraph, he shall be convicted and punished in accordance with the provisions of Article 382 or 383 of this Law.” Article 382 of the Criminal Law prescribes that: “Any State functionary who, by taking advantage of his office, appropriates, steals, swindles public money or property or illegally takes it into his own possession by other means shall be guilty of embezzlement”. “Any person authorized by State organs, State-owned companies, enterprises, institutions or people's organizations to administer and manage State-owned property who, by taking advantage of his office, appropriates, steals, swindles the said property or illegally takes it into his own possession by any other means shall be regarded as being guilty of embezzlement”. “Whoever conspires with the person mentioned in the preceding two paragraphs to engage in embezzlement shall be regarded as accomplices in the crime and punished as such.” Article 383 of the Criminal Law prescribes that: “Persons who commit the crime of embezzlement shall be punished respectively in the light of the seriousness of the circumstances and in accordance with the following provisions: (1) An individual who embezzles not less than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to death and also to confiscation of property. (2) An individual who embezzles not less than 50,000 yuan but less than 100,000 yuan shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to life imprisonment and confiscation of property. (3) An individual who embezzles not less than 5,000 yuan but less than 50,000 yuan shall be sentenced to fixed-term imprisonment of not less than one year but not more than seven years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than seven years but not more than 10 years. If an individual who embezzles not less than 5,000 yuan and less than 10,000 yuan, shows heartfelt repentance after committing the crime, and gives up the embezzled money of his own accord, he may be given a mitigated punishment, or he may be exempted from criminal punishment but shall be subjected to administrative sanctions by his work unit or by the competent authorities at a higher level. (4) An individual who embezzles less than 5,000 yuan, if the circumstances are relatively serious, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; if the circumstances are relatively minor, he shall be given administrative sanctions at the discretion of his work unit or of the competent authorities at a higher level”. “Whoever repeatedly commits the crime of embezzlement and goes unpunished shall be punished on the basis of the cumulative amount of money he has embezzled.” 刑法二百七十一条规定:“公司、企业或者其他单位的人员,利用职务上的便利,将本单位财物非法占为己有,数额较大的,处五年以下有期徒刑或者拘役;数额巨大的,处五处以上有期徒刑,可以并处没收财产。”“国有公司、企业或者其他国有单位中从事公务的人员和国有公司、企业或者其他国有单位委派到非国有公司、企业以及其他单位从事公务的人员有前款行为的,依照本法第三百八十二条、第三百八十三条的规定定罪处罚。”第三百八十二条规定:“国家工作人员利用职务上的便利,侵吞、窃取、骗取或者以其他手段非法占有公共财物的,是贪污罪。”“受国家机关、国有公司、企业、事业单位、人民团体委托管理、经营国有财产的人员,利用职务上的便利,侵吞、窃取、骗取或者以其他手段非法占有国有财物的,以贪污论。”“与前两款所列人员勾结,伙同贪污的,以共犯论处。”第三百八十三条规定:“对犯贪污罪的,根据情节轻重,分别依照下列规定处罚:(一)个人贪污数额在十万元以上的,处十年以上有期徒刑或者无期徒刑,可以并处没收财产;情节特别严重的,处死刑,并处没收财产。(二)个人贪污数额在五万元以上不满十万元的,处五年以上有期徒刑,可以并处没收财产;情节特别严重的,处无期徒刑,并处没收财产。(三)个人贪污数额在五千元以上不满五万元的,处一年以上七年以下有期徒刑;情节严重的,处七年以上十年以下有期徒刑。个人贪污数额在五千元以上不满一万元,犯罪后有悔改表现、积极退赃的,可以减轻处罚或者免予刑事处罚,由其所在单位或者上级主管机关给予行政处分。(四)个人贪污数额不满五千元,情节较重的,处二年以下有期徒刑或者拘役;情节较轻的,由其所在单位或者上级主管机关酌情给予行政处分。”“对多次贪污未经处理的,按照累计贪污数额处罚。”
Article 1 of the Interpretation of the Supreme People's Court on Several Issues about How to Identify the Joint Crime in the Trial of Cases concerning Embezzlement or Duty-related Encroachment (No. 15 [2000] of the Supreme People's Court) prescribes that: “Any person who colludes with any State functionary by taking advantage of the post of the State functionary, and jointly appropriates, steals, swindles public money or property or illegally takes it into his own possession by any other means shall be regarded as an accomplice of the crime of embezzlement”. Article 2 prescribes that: “Any person who colludes with the member of any company, enterprise or any other entity by taking advantage of such members, and jointly takes the money or property of the said entity into his possession, if the amount is relatively large, shall be regarded as an accomplice of the crime of duty-related encroachment.” 最高人民法院在《关于审理贪污、职务侵占案件如何认定共同犯罪几个问题的解释》(法释[2000]15号)第一条规定:“行为人与国家工作人员勾结,利用国家工作人员的职务便利,共同侵吞、窃取、骗取或者以其他手段非法占有公共财物的,以贪污罪共犯论处。”第二条规定:“行为人与公司、企业或者他单位的人员勾结,利用公司、企业或者其他单位人员的职务便利,共同将该单位财物非法占为己有,数额较大的,以职务侵占罪共犯论处,”
No.3 Printing Factory was a State-owned enterprise affiliated to Printing and Packaging Corporation, and therefore, its property was State-owned, and Zhang Longhai and Liu Kaikai were state functionaries working for this factory. Fine Machinery Factory was a collectively-owned enterprise affiliated to Printing and Packaging Corporation and a Sino-foreign joint venture, and its property was collectively owned, therefore, Shao Xianchu and Zhang Yong were members of a collectively-owned enterprise. Tang Zhihua did not work for No.3 Printing Factory or Fine Machinery Factory, and was neither a state functionary nor an employee of the collectively-owned enterprise, but he made use of his relation and his impacts to Printing and Packing Corporation, coaxed and instigated Zhong Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong, and had them work for him. By so doing, Tang obtained more than 3,667,000 yuan from No.3 Printing Factory and Fine Machinery Factory, and transferred them to his own private company which had neither commercial resources nor capacity and encroached on the said money. According to the aforesaid laws and judicial interpretations, Tang Zhihua and Zhang Longhai cheated over 245,500 yuan of State-owned assets from No.3 Printing Factory by changing hands and issuing invoices with raised price, thus, their acts had constituted the crime of embezzlement. Tang Zhihua, Shao Xianchu and Zhang Yong had encroached on more than 2,645,000 yuan of property and money from Fine Machinery Factory by changing hands and issuing invoices with raised price, thus, their acts had constituted the crime of duty-related encroachment, and they should be published. 三印厂是印包公司下属的国有企业,其企业财产是国有财产,被告人张龙海、刘恺恺是在该企业中工作的国家工作人员。精工厂是印包公司与外方合资企业下属的集体企业,其企业财产为集体所有,被告人邵先初、张勇是该集体企业的工作人员。被告人唐志华不在受害单位三印厂、精工厂工作,既不是国家工作人员,也不是集体企业的工作人员,但其利用自己在印包公司的关系和影响,拉拢、指使张龙活、刘恺恺、邵先初、张勇为其办事,利用他们职务上的便利,把这两个厂本来可以不支出的366、7万余元资金转移到自己设立的既无资金、又无经营资源和能力的私营公司,予以侵吞、侵占。依照上述法律和司法解释的规定,唐志华、张龙海采用转手加价开具发票的手段骗取三印厂国有财产24.55万余元,其行为构成贪污罪;唐志华和邵先初、张勇采用转手加价开具发票的手段侵占精工厂财物264.5万余元,其行为构成职务侵占罪,均应依法惩处。
The audit conclusion and the price appraisal, by taking into account the selling price ordered by goods suppliers and the market price indexes for the same period, deducted the amount of profits that might be offered by goods supplies and thus affirmed that Tang encroached on more than 777,000 yuan of payments of No.3 Printing Factory and more than 2,645,000 yuan of payments of Fine Machinery Factory, which were respectively over 85,000 yuan and over 506,000 yuan less than the payments for goods Tang had actually received and issued invoices. Such being the case, Tang had raised the price at an average of 40% on the basis of the original price. Witnesses Yang Jian and Han Donghai affirmed that the price Huaguang Company quoted to Baoqiang Company was the its purchasing price plus 3%. Witness Tang Kai affirmed that the price Fuji Company ordered to Baoqiang Company was its purchasing price plus 5%. Witness Zhang Shaoxiang affirmed that the price Huasheng Company quoted to Baoqiang Company was its purchasing price plus 5%. So the prices ordered by these three companies to Baoqiang Company were only 3% or 5% less than the prices they originally ordered to No.3 Printing Factory or Fine Machinery Factory or the market prices for the time being. Witnesses Han Donghai, et al, also affirmed that the goods suppliers in the aforesaid transactions suffered no loss. The testimonies also affirmed that Tang Zhihua had never done any work for No.3 Printing Factory or Fine Machinery Factory except for the issuance of invoices with raised prices. These circumstances showed that the more than 3,422,000 yuan Tang Zhihua obtained by changing hands and raising the price were the extra payments No.3 Printing Factory and Fine Machinery Factory had paid due to the unlawful invention of an additional goods supplying link. The defenses of Tang Zhihua, et al, and their defenders that the money obtained by Tang was mainly from the profits offered by goods suppliers were not consistent with the facts, and therefore should not be adopted. 审计结论和价格鉴定在考虑到供货商同期供货价格与市场价格指数的情况下,扣除了供货商可能的让利数额,认定被告人唐志华侵吞三印厂的货款77.7万余元,侵占精工厂的货款264.5万余元,比唐志华开具发票实际收到的货款减少了8.5万余元和50.6万余元。即使如此,唐志华的平均加价水平也超过40%。证人杨健、韩东海证实,华光公司给宝强公司的价格,是在他们公司的进货价上加3%;证人汤凯证实,富基公司给宝强公司的价格,是在他们公司进货价上加5%;证人张少湘证实,华盛公司给宝强公司的价格,是在他们公司进货价上加5%。这些公司给宝强公司的价格水平,均只比他们原来供应给三印厂、精工厂时的价格或者当时的市场价下降3%至5%。证人韩东海等证实,在上述交易中,供货商是没有损失的。证人证言还证实,唐志华除了加价转开发票外,连给三印厂和精工厂送货之类的事都未做过。这些情节说明,唐志华通过转手加价开具发票后得到的342.2万余元,是三印厂、精工厂因被虚增供货环节而多支付的货款。各被告人以及他们的辩护人关于唐志华牟取的钱款主要是通过供货商利所得的意见与事实不符,不予采纳。
Article 13 of the Criminal Law prescribes that: “A crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, subverts the State power of the people's democratic dictatorship and overthrows the socialist system, undermines public and economic order, violates State-owned property, property collectively owned by the working people, or property privately owned by citizens, infringes on the citizens' rights of the person, their democratic or other rights, and any other act that endangers society and is subject to punishment according to law. However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.” Tang Zhihua clearly knew that his Baoqiang Company had neither capital, goods, resources nor capacity, but still made use of his influence and relations in the printing and packing industry, coaxed and instigated Zhong Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong to work for him by taking advantage of their posts, adding his Baoqiang Company into the normal goods supply links of No.3 Printing Factory and Fine Machinery with its original goods suppliers, and encroached on State-owned and collectively-owned property by means of changing hands and issuing invoices with raised prices. Undoubtedly, his acts had encroached on the State-owned and collectively-owned property and damaged the society, therefore, he should be given criminal penalties. 刑法十三条:“一切危害国家主权、领土完整和安全,分裂国家、颠覆人民民主专政的政权和推翻社会主义制度,破坏社会秩序和经济秩序,侵犯国有财产或者劳动群众集体所有的财产,侵犯公民私人所有的财产,侵犯公民的人身权利、民主权利和其他权利,以及其他危害社会的行为,依照法律应当受刑罚处罚的,都是犯罪,但是情节显著轻微害不大的,不认为是犯罪。”被告人唐志华明知自己设立的宝强公司既无资金、又无经营的货物、资源和能力,却利用自己在印包行业的影响和关系,拉拢和指使被告人张龙海、邵先初、张勇,利用他们职务上的便利,把自己的私营公司加入到三印厂、精工厂与原有供应商正常的供货渠道中,通过转手加价开具发票的手段,将国有和集体所有的财产占为己有。此举无疑侵犯了国有财产和集体所有的财产,是危害社会的行为,依照法律应当受刑罚处罚。
Article 25 of the Criminal Law prescribes that: “A joint crime refers to an intentional crime committed by two or more persons jointly.” All the persons participating in the joint intentional crime shall have the same criminal intent. In this case, the criminal intent of Tang Zhihua, et al, was clear, namely, to convert the State-owned and collectively-owned property of No.3 Printing Factory and Fine Machinery into the private property of Tang. The active cooperation of Zhang Longhia, Shao Xianchu and Zhang Yong by taking advantage of their posts was indispensable for Tang to obtain huge amounts of money from No.3 Printing Factory and Fine Machinery under the circumstance that Tang neither conducted lawful business operations nor engaged in commissioned business. When Tang Zhihua, et al, committed their respective criminal acts, they obviously knew that their acts would encroach on the lawful ownership of State-owned and collectively-owned property but they still wished to achieve this objective, so their acts constituted the joint intentional crime. 刑法二十五条规定:“共同犯罪是指二人以上共同故意犯罪。”参与共同故意犯罪的行为人,都有同一的犯罪目的。本案各被告人的犯罪目的是明确的,就是要把三印厂、精工厂的国有和集体所有的财产,转化为被告人唐志华的私有财产。唐志华所以能在没有合法经营或代理关系的情况下从三印厂、精工厂攫取到巨额资金,离不开被告人张龙海、邵先初、张勇利用各自职务上的便利给予的积极合作。各被告人在实施各自行为时,都明知会侵害国有、集体所有财产的合法所有权,但都希望达到这一目的,因此他们的行为是共同故意犯罪。
In a joint intentional crime, although each person respectively implements his own acts that harm the society so as to achieve a same criminal intent, the criminal motive of each person for implementing such acts may be different. The difference of criminal motives will not affect the constitution of a crime. In this case, Tang Zhihua implemented his acts that harm the society under the avarice motive, and as to Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong, because they either wanted to show their gratitude to Tang for his help or wanted to find a better position for themselves, they colluded with Tang Zhihua and each of them implemented his own acts that would harm the society by taking advantage of his own post so as to give the State-owned or collectively-owned property under their management to Tang. In the joint crime for achieving the said criminal intent, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong's criminal acts of illegally adding a goods supplying link and inventing various kinds of expenses by taking advantage of their posts were indispensable. 在共同故意犯罪中,各个行为人虽然都是为实现同一犯罪目的而各自实施着危害社会的行为,但促使各个人行为人实施危害社会行为的犯罪动机可以不同。犯罪动机不同,不影响犯罪的构成。本案中,被告人唐志华是在贪财动机的驱使下实施危害社会的行为,而被告人张龙海、刘恺恺、邵先初、张勇则或是出于感谢唐志华对自己的照顾,或是请唐志华给自己谋求职位等犯罪动机,才与唐志华共谋,分别利用自己职务上的便利实施危害社会的行为,以达到将各自经营管理的国有、集体财产送归唐志华私有的犯罪目的。在为实现这一犯罪目的的共同犯罪中,张龙海、刘恺恺、邵先初、张勇利用各自职务上的便利实施的私自增设进货环节、虚列各项费用的犯罪行为,是必不可少的组成部分。
In a joint intentional crime for the purpose of encroaching on property, some individuals may not participate in sharing the loot. The key point to affirming such kind of crime is not to find whether a person has participated in the sharing the loot and how much he has obtained but to find whether the property relationship protected by the Criminal Law has been encroached on and to what degree it has been encroached on. It was a fact that Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong did not participate in sharing the loot in this case, and their defenders argued on this basis that the said fact proved that they had neither the criminal purpose nor the criminal motive, and their acts could not constitute the crime. However, the loot sharing will not affect the conviction of crime and can only be a factor to be considered in sentencing. So their defenses could not be established. 以侵犯财产为目的的共同故意犯罪中,不排除个别行为人不参与分赃的情形。认定此类犯罪是否构成的关键,不是看行为人通过是否得到赃物或者得到多少赃物,而是看刑法所保护的财产关系是否被侵犯以及被侵犯的程度。被告人张龙海、刘恺恺、邵先初、张能在参与共同犯罪中没有分得赃款,这是事实。他们以及他们的辩护人就此提出,这证明他们既没有犯罪的目的,也没有犯罪的动机,因而不构成犯罪。没有分赃,不影响定罪,只能作为量刑时酌情考虑的一个情节。此辩解和辩护意见,不能成立。
Item (2) of Article 166 of the Criminal Law 三年不开张,开张吃三年prescribes that: Any employee of a State-owned company, enterprise or public institution who takes advantage of his post, and purchases commodities from the entity managed by his relatives or friends at a price obviously higher than the market price, or sells commodities to such entity at a price obviously lower than the market price shall be guilty of the crime of seeking unjust benefits for relatives and friends. In this case, Baoqiang Company was not a legally operated entity because it had neither capital nor operating capability and did not actually engage in any formal purchase of electrical products; the purpose for Tang Zhihua to establish Baoqiang Company was not the participation in business operations but the illegal obtaining of the funds of State-owned and collectively-owned enterprises; furthermore, Tang Zhihua was neither relative nor friend of Zhang Longhai, and Zhang Longhai gave the public money of No.3 Printing Factory to Tang just because he wanted to keep his post. Therefore, the acts of Zhang Longhai could not constitute the crime of seeking unjust benefits for relatives and friends. 刑法我反正不洗碗,我可以做饭一百六十六条第(二)项规定,国有企业、企业、事业单位的工作人员,利用职务便利,“以明显高于市场的价格向自己的亲友经营管理的单位采购商品或者以明显低于市场的价格向自己的亲友经营管理的单位销售商品的”,构成亲友非法牟利罪。本案中,宝强公司既无资金也无经营能力,实际上没有从事过任何一笔电器商品的正规购销业务,本身不是一个合法经营管理的单位;被告人唐志华设立宝强公司的目的,不是想以此参与市场经营,而是为套取国有、集体企业的资金;况且唐志华也不是被告人张龙海自愿为其牟利的亲友。张龙海拱手将三印厂的公款交给唐志华占有,是出于保住自己职位的动机。因此,张龙海的行为不属于为亲友非法牟利罪。
Zhang Longhai had made, indeed, efforts and done a lot of useful work for the business operations and market development of No.3 Printing Factory when he served as the executive vice director and the director of the factory, however, he also conspired with Tang Zhihua to encroach on huge amounts of State-owned assets of No.3 Printing Factory for the sake of his own private interests. As a state functionary and the cadre in charge of a State-owned enterprise, he should be obliged to abide by the laws and disciplines and work hard. Past merits and performances should not be used to cover criminal acts nor could they become the reason and basis for exemption from criminal liabilities. Any person, regardless of how high his credits and contributions are, so long as he violates the criminal law, should be subject to criminal penalty. This is the socialist justice. The defense of Zhang's defender that the acts of Zhang constituted the crime of seeking unjust benefits for relatives and friends and should be exempted from criminal liabilities due to his past performances could not be adopted. 被告人张龙海在担任三印厂的常务副厂长、厂长期间,确曾为企业的生产经营和市场开拓付出了努力,做了不少有益的工作。但同时张龙海也因一己私利,配合被告人唐志华侵吞了三印厂经营管理的巨额国有资产。作为国家工作人员和国有企业的负责干部,遵纪守法、努力工作是其应尽的职责。过去的功劳和业绩,既不能用来掩盖违法犯罪的行为,也不能成为免除刑事责任的理由和依据。任何人,无论其功劳多高、贡献多大,只要触犯了刑事法律,就应当受到刑罚的处罚。这是社会主义司法的公正所在。张龙海的辩护人提出张龙海的行为构成为亲友非法牟利罪,根据其过去表现应当免除刑事责任的辩护意见,不予采纳。
Shao Xianchu had ever accepted 20,000 yuan of cash from Ding Huilai in the name of entertainment charges in addition to the more than 24,800 yuan of bribes from Gu Guoqiang, Ding Huilai and Chen Jianhua. The said 20,000 yuan was placed in the exchequer privately set up by Shao and used as entertainment charges, which was not affirmed as the criminal facts of this case. Shao and his defender mixed up the bribes accepted by Shao with the 20,000 yuan of cash Shao obtained from Ding Huilai and defended that these properties were used as entertainment charges and thus Shao did not commit the crime of acceptance of bribes by enterprise employee. However, their defense was not based on facts and should not be adopted. 被告人邵先初除收受过顾国强、丁惠来、陈建华合计2.48万余元的贿赂财物外,还曾以交际费等名义向丁惠来收取过现金2万元。这2万元放在邵先初私设的小金库,用于业务交际花费,没有被认定为本案的犯罪事实。邵先初及其辩护人将邵先初的贿赂混同于邵先初向丁惠来收取的2万元现金,辩称这些财物用于业务交际,不构成企业人员受贿罪,没有事实根据,不予采纳。
In sum, the acts of Tang Zhihua, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong constituted the crime of embezzlement, the crime of duty-related encroachment, and the crime of acceptance of bribes by enterprise employees respectively, and all of them should be punished. The criminal acts of Tang Zhihua, Zhang Longhai, Shao Xianchu and Zhang Yong seriously destroyed social and economic order, and they might be sentenced to deprivation of political rights as a supplementary punishment according to Article 56 of the Criminal Law. Both Tang Zhihua and Shao Xianchu had committed several crimes, and thus should be given a combined punishment according to Article 69 of the Criminal Law. Since Tang Zhihua embezzled more than one million yuan of State-owned property, he should be given a serious punishment according to Item (1) of Paragraph 1 of Article 383 of the Criminal Law. However, considering that the crime of embezzlement is generally committed by state functionaries, the Criminal Law imposes serious punishments for the crime of embezzlement according to the principle of imposing serious punishments on State functionaries, and Tang was not a State functionary and committed the crime with the assistance of State functionaries, so a lighter punishment within the statutory sentencing range might be given to Tang Zhihua for his crime of embezzlement. Although Shao Xianchu, Zhang Yong, Zhang Longhai and Liu Kaikai committed the joint crime, they did not obtain illicit money therefrom, and had confessed their criminal acts before the discipline inspection organ took coercive measures, they should be regarded as voluntary surrender. According to Paragraph 1 of Article 67 of the Criminal Law, Shao Xianchu and Zhang Yong might be given a mitigated punishment, and the punishment to Zhang Longhai and Liu Kaikai should be mitigated. According to Article 64 of the Criminal Law, all money and property illegally obtained by a criminal shall be recovered, or compensation shall be ordered. Based thereon, the No. 1 Intermediate People's Court of Shanghai Municipality rendered the following judgment on February 22, 2001: 综上所述,被告人唐志华、张龙海、刘恺恺、邵先初、张勇的行为分别构成贪污罪、职务侵占罪、企业人员受贿罪,均应依法惩罚。唐志华、张龙海、邵先初、张勇的犯罪行为严重破坏社会经济秩序,依照刑法五十六条的规定,可以附加剥夺政治权利。唐志华、邵先初都是一人犯数罪,依照刑法六十九条的规定,应当数罪并罚。唐志华贪污国有财产达100余万元,本应依照刑法三百八十三条第一款第(一)项的规定予以重处,考虑到贪污罪一般是国家工作人员才能构成的犯罪,刑法根据国家工作人员犯罪从重处罚的原则才对贪污罪规定了很重的刑罚,而唐志华并非国家工作人员,他是在得到国家工作人员的配合后才犯下此罪,因此对唐志华的贪污罪行,可以在法定量刑幅度内从轻处罚。邵先初、张勇、张龙海、刘恺恺虽然参与了共同犯罪,但在犯罪中未分得具体赃款,且在侦查机关未采取强制措施前就向纪律检查机关如实交代了自己的犯罪事实,应视为自首。依照刑法六十七条第一款的规定,对邵先初、张勇可从轻处罚,对张龙海、刘恺恺可减轻处罚。依照刑法六十四条的规定,犯罪分子违法所得的一切财物,应当予以追缴或者责令退赔。据此,上海市第一中级人民法院于2001年2月22日判决:
I. Tang Zhihua is guilty of the crime of duty-related encroachment and is sentenced to fixed-term imprisonment of 13 years, be deprived of political rights for 3 years, and also be sentenced to confiscation of property of one million yuan. He is also guilty of the crime of embezzlement and is sentenced to fixed-term imprisonment of 15 years, be deprived of political rights for 4 years, and also be sentenced to confiscation of property of 500,000 yuan; so it is hereby decided to execute the fixed-term imprisonment of 20 years, the deprivation of political rights for 5 years and the confiscation of property of 1.5 million yuan; 一、被告人唐志华犯职务侵占罪,判处有期徒刑十三年,剥夺政治权利三年,并处没收财产100万元;犯贪污罪,判处有期徒刑十五年,剥夺政治权利四年,并处没收财产50万元;决定执行有期徒刑二十年,剥夺政治权利五年,并处没收财产150万元。
II. Shao Xianchu is guilty of the crime of duty-related encroachment and is sentenced to fixed-term imprisonment of 13 years and be deprived of political rights for 3 years. He is also guilty of the crime of acceptance of bribes by enterprise employee and is sentenced to fixed-term imprisonment of 1 year. So it is hereby decided to execute the fixed-term imprisonment of 11 years and the deprivation of political rights for 3 years; 二、被告人邵先初犯职务侵占罪,判处有期徒刑十年,剥夺政治权利三年;犯企业人员受贿罪,判处有期徒刑一年;决定执行有期徒刑十一年,剥夺政治权利三年。
III. Zhang Yong is guilty of the crime of duty-related encroachment and is sentenced to fixed-term imprisonment of 9 years and be deprived of political rights for 2 years; 三、被告人张勇犯职务侵占罪,判处有期徒刑九年,剥夺政治权利二年。
IV. Zhang Longhai is guilty of the crime of embezzlement and is sentenced to fixed-term imprisonment of 8 years and be deprived of political rights for 1 year; 四、被告人张龙海犯贪污罪,判处有期徒刑八年,剥夺政治权利一年。
V. Liu Kaikai is guilty of the crime of embezzlement and is sentenced to fixed-term imprisonment of 5 years; and 五、被告人刘恺恺犯贪污罪,判处有期徒刑五年。
VI. All the money and property embezzled and trespassed by Tang Zhihua should be recovered, and compensation should be ordered. All the illicit money obtained by Shao Xianchu and Zhang Yong should be recovered. 六、被告人唐志华贪污、侵占所得,全部予以追缴,不足部分责令退赔。被告人邵先初、张勇的违法所得,均予追缴。
After the judgment of the first instance was announced, Tang Zhihua, Shao Xianchu, Zhang Yong and Liu Kaikai were not satisfied, and filed an appeal for the reasons that the profits of Baoqiang Company were profits offered by suppliers, and No.3 Printing Factory should pay technical service charges, and their acts could not constitute a crime. 一审宣判后,被告人唐志华、邵先初、张勇、刘恺恺不服,仍以宝强公司的获利来自供货单位的让利,三印厂应当支出技术服务费,他们的行为不构成犯罪等为由提出上诉。
JUDGMENT'S REASONING 
Upon the second instance, the Higher People's Court of Shanghai Municipality held that: the acts of Tang Zhihua, Zhang Longhai, Liu Kaikai, Shao Xianchu and Zhang Yong have constituted the crime of duty-related encroachment since Tang Zhihua colluded with Zhang Longhai and Liu Kaikai as well as Shao Xianchu and Zhang Yong, and made use of their respective posts of director and vice director of a State-owned enterprise and a collectively-owned enterprise to encroach on the payments for goods and other public money of such enterprises. Shao Xianchu is guilty of the crime of acceptance of bribes and is punished since he took advantage of his post and accepted 24,800 yuan of bribes. Therefore, the reasons for appeal of Tang Zhihua, et al, do not conform to the findings of facts and shall not be adopted. The findings of facts are clear, the evidence is sufficient, the application of laws is correct, the sentencing is proper, and the trial procedures were lawfully followed in the judgment of the first instance, so the original judgment shall be maintained. Based thereon, the Higher People's Court of Shanghai Municipality adjudicated on May 8, 2001: 上海市高级人民法院经二审认为:上诉人唐志华勾结原审被告人张龙海、上诉人刘恺恺等国有企业工作人员,勾结上诉人邵先初、张勇分别在国有企业和集体企业担任厂长、副厂长的职务便利,将国有企业和集体企业的购货款和其他公款让唐志华、邵先初、张勇的行为构成职务侵占罪。邵先初利用职务便利,收受他人价值2.48万元的贿赂,其行为还构成企业人员受贿罪,均应依法惩处。4名上诉人的上诉理由与查明的事实不符,不予采纳。一审判决认定的事实清楚、证据确凿,适用法律正确,量刑适当,审判程序合法,应当维持。据此,上海市高级人民法院于2001年5月8日裁定:
JUDGMENT 
The appeal shall be rejected and the original judgment shall be maintained.

 驳回上诉,维持原判。
 

     
     
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