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Guiding Case No. 44: Case regarding Application for Compensation for Illegal Criminal Recovery by Bo Xinguang (case of application for compensation for illegal criminal recovery)
指导案例44号:卜新光申请刑事违法追缴赔偿案
【法宝引证码】
  • Type of Dispute: State Compensation
  • Judgment date: 11-24-2011
  • Procedural status: State Compensation

Guiding Case No. 44: Case regarding Application for Compensation for Illegal Criminal Recovery by Bo Xinguang        

 

指导案例44号:卜新光申请刑事违法追缴赔偿案

(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court)         (最高人民法院审判委员会讨论通过 2014年12月25日发布)

Guiding Case No. 44 指导案例44号
Keywords: 关键词
state compensation; criminal compensation; criminal recovery; return of illicit property         国家赔偿 刑事赔偿 刑事追缴 发还赃物
Key Points of Judgment          裁判要点
The return of the illicit property that is ordered to be reverted to the victim entity by a public security authority according to an effective criminal judgment as rendered by a people's court does not infringe upon the lawful rights and interests of the compensation claimant and it does not fall under the circumstances as prescribed in item (1) of Article 18 of the State Compensation Law of the People's Republic of China and the public security authority shall not assume the state compensation liability.          公安机关根据人民法院生效刑事判决将判令追缴的赃物发还被害单位,并未侵犯赔偿请求人的合法权益,不属于《中华人民共和国国家赔偿法
开弓没有回头箭
》第十八条第一项规定的情形,不应承担国家赔偿责任。
Relevant Legal Provisions          相关法条
Article 18北京大学互联网法律中心 of the State Compensation Law of the People's Republic of China          中华人民共和国国家赔偿法》第十八条会让它误以为那是爱情
Basic Facts          基本案情
Compensation claimant, Bo Xinguang, filed an application for compensation with the Compensation Committee of the Supreme People's Court on the grounds that the decision on criminal compensation (No. 01 [2011], Public Security Department, Anhui) as issued by the Public Security Department of Anxin Province and the reconsideration decision on criminal compensation (No. 1 [2011], Ministry of Public Security) as issued by the Ministry of Public Security of the People's Republic of China (hereinafter referred to as the “Ministry of Public Security”) were contrary to facts and improper in the application of law. Bo Xinguang alleged that the Public Security Department of Anxin Province disposed of economic disputes beyond its authority and it was illegal for the Public Security Department of Anxin Province to order him to offset his bank debts by the “land of Shenkeng Village” he purchased. He raised such compensation claims that the Public Security Department of Anxin Province should pay him 3.166 million yuan as compensation for economic losses.          赔偿请求人卜新光以安徽省公安厅皖公刑赔字〔2011〕01号刑事赔偿决定、中华人民共和国公安部(以下简称公安部)公刑赔复字〔2011〕1号刑事赔偿复议决定与事实不符,适用法律不当为由,向最高人民法院赔偿委员会提出赔偿申请,称安徽省公安厅越权处置经济纠纷,以其购买的“深坑村土地”抵偿银行欠款违法,提出安徽省公安厅赔偿经济损失316.6万元等赔偿请求。
After a hearing, the court found that: A case has been placed on file for investigation by the Public Security Department of Anxin Province against compensation claimant, Bo Xinguang, because he was suspected of committing the crimes of forging a company seal, illegally issuing financial instruments, and embezzling funds. On September 5, 1999, Bo Xinguang was arrested and before the arrest, he was the General Manager of Shenzhen Xinhui Industrial Development Co., Ltd. (hereinafter referred to as “Xinhui Company”). On November 20, 2001, the Intermediate People's Court of Hefei City rendered a criminal judgment (No. 68 [2001], First, Criminal Division, Hefei), which determined that during the period of contracted management of Anxin Trust and Investment Company, Shenzhen Securities Business Department (hereinafter referred to as “Anxin Trust and Securities Department”) as of January 1995, without the authorization of Anxin Trust and Investment Company (hereinafter referred to as “Anxin Trust Company”), Bo Xinguang arranged his employees to privately engrave and use the seal for the exclusive use of AnxinTrust Company, forged the power of attorney authorized by the legal person of Anxin Trust Company, the certificate of the legal representative, and the guarantee documents to Shenzhen Stock Exchange by using the fake seal, and acquired the operational qualification of Anxin Trust and Securities Department. The acts of Bo Xinguang constituted the crime of forging a seal; during the period of contracted management of Anxin Trust and Securities Department, Bo Xinguang issued false credit certificates to other persons twice in violation of the financial administration regulations, which caused significant economic losses of 10.32 million yuan. The acts of Bo Xinguang also constituted the crime of illegally issuing financial instruments; in the process of contracted management, as the General Manager of Anxin Trust and Securities Department, Bo Xinguang directly or indirectly embezzled the funds of Anxin Trust and Securities Department amounting to 91.732286 million yuan to be used in the investments and various expenses of Xinhui Company he owned by taking advantage of his position, being not associated with AnxinTrust and Securities Department in business operation, but AnxinTrust and Securities Department and AnxinTrust Company assumed the legal liability for the economic losses caused. It should be deemed that Bo Xinguang embezzled the funds of AnxinTrust and Securities Department for his personal use. The acts of Bo Xinguang constituted the crime of embezzling funds. After the case was exposed, the Public Security Department of Anxin Province recovered the illicit money of 16.8905 million yuan and the illicit property and housing amounting to 16.27 million yuan; and seized the housing worth 28.40 million yuan as invested by Xinhui Company and the right to use land worth 19.50 million yuan, 81.0605 million yuan in total. Bo Xinguang committed several crimes and should be subject to the joinder of penalties. Therefore, the court rendered the following judgment:         
......
 法院经审理查明:赔偿请求人卜新光因涉嫌伪造公司印章罪、非法出具金融票证罪和挪用资金罪被安徽省公安厅立案侦查,于1999年9月5日被逮捕,捕前系深圳新晖实业发展有限责任公司(以下简称新晖公司)总经理。2001年11月20日,合肥市中级人民法院作出(2001)合刑初字第68号刑事判决,认定卜新光自1995年1月起承包经营安徽省信托投资公司深圳证券业务部(以下简称安信证券部)期间,未经安徽省信托投资公司(以下简称安信公司)授权,安排其聘用人员私自刻制、使用属于安信公司专有的公司印章,并用此假印章伪造安信公司法人授权委托书、法定代表人证明书及给深圳证券交易所的担保文书,获得了安信证券部的营业资格,其行为构成伪造印章罪;卜新光在承包经营安信证券部期间,违反金融管理法规,两次向他人开具虚假的资信证明,造成1032万元的重大经济损失,其行为又构成非法出具金融票证罪;在承包经营过程中,作为安信证券部总经理,利用职务之便,直接或间接将安信证券部资金9173.2286万元挪用,用于其个人所有的新晖公司投资及各项费用,与安信证券部经营业务没有关联,且造成的经济损失由安信证券部、安信公司承担法律责任,应视为卜新光挪用证券部资金归个人使用,其行为构成挪用资金罪。案发后,安徽省公安厅追回赃款1689.05万元,赃物、住房折合1627万元;查封新晖公司投资的价值2840万元房产和1950万元的土地使用权,共计价值8106.05万元。卜新光一人犯数罪,应数罪并罚,遂判决:
......

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