How to determine the completion time of three Court joint trial | corruption and partial return
2022-03-16
Special guest Qi Tao, director of the fourth supervision and inspection office of Changzhou Tianning District Commission for Discipline Inspection Wang Weimin, director of case trial Office of Tianning District Commission for Discipline Inspection and supervision of Changzhou City Wang Jutao, director of the sixth procuratorial department of Changzhou Tianning District People's Procuratorate Zhu Zhaolin post judge of criminal trial division of Changzhou Tianning District People's court Editor's note This is a typical case in which party members and cadres commit the crimes of corruption, bribery and fraud at the same time, and the amount involved is particularly huge. In this case, Tang Jianwei's crime of corruption and bribery is investigated by the supervision organ, and the crime of fraud is investigated by the public security organ. How to coordinate and cooperate in handling the case? Tang Jianwei charged 2.75 million yuan from relevant construction units to repay personal debts on the grounds of promoting demolition work, which constitutes the crime of fraud or corruption? Since then, it took 300000 yuan out of 2.75 million yuan for demolition work. Should it be deducted from the amount of crime? Tang Jianwei committed three crimes alone, among which the crime of fraud constitutes voluntary surrender. What impact does this have on the final sentencing? We specially invite the staff of relevant units to analyze it. Basic case: Tang Jianwei, male, born in November 1969, is a member of the Communist Party of China. He once served as deputy mayor of Zhenglu Town People's Government of Tianning District, Changzhou City, member of the Party group and deputy director of the real estate administration bureau of Tianning District, Changzhou City, and concurrently served as the full-time deputy commander in chief and head of the office of the construction headquarters of the East expansion and Integration Development Zone of Tianning Economic Development Zone (hereinafter referred to as the East expansion and integration headquarters), member of the Party committee and deputy director of the housing and Urban Rural Development Bureau of Tianning District, Changzhou City, The former chief clerk of the second level of housing and Urban Rural Development Bureau of Tianning District, Changzhou City. 1、 Corruption. While serving as the full-time deputy commander in chief and office director of the East expansion and integration headquarters, Tang Jianwei successively demanded a total of 2.75 million yuan from seven construction units in the development area from April to August 2018 in the name of promoting the demolition work and solving the demolition contradictions in the East expansion and integration development area (hereinafter referred to as the development area), and promised to make compensation in other ways in the later stage, At the same time, a collection certificate stamped with the official seal of the East Expansion finance headquarters or signed by its individual was issued to the relevant construction units. In January 2019, Tang Jianwei was transferred from the East Expansion finance headquarters. In February and June of the same year, Wang Moumou, the relocated household, urged him to pay 300000 yuan of compensation, and the remaining 2.45 million yuan was used by Tang Jianwei to repay his personal debts. 2、 Bribery. From 2012 to 2018, Tang Jianwei took advantage of his position as deputy mayor of Zhenglu town and full-time Deputy commander-in-chief of the East Expansion finance headquarters to seek benefits for others in terms of project undertaking, construction supervision and fund settlement, and demanded or illegally received more than 170000 yuan of property given by Qiu and others. 3、 Fraud. From September 2018 to February 2021, Tang Jianwei falsely claimed that the bid security, bid evaluation fee and advance payment for the purchase of facade houses were required for the bidding of relevant engineering projects in the Development Zone, and successively defrauded 14 units and individuals of more than 39.26 million yuan to repay personal debts. Investigation process: [filing, examination and investigation] on March 3, 2021, the supervision committee of Tianning District Commission for Discipline Inspection filed, examined and investigated Tang Jianwei, and took retention measures on March 9 of the same year. [Party discipline and government punishment] on June 7, 2021, the supervision committee of Tianning District Commission for Discipline Inspection gave Tang Jianwei the punishment of expulsion from the party and from public office. [transfer for examination and prosecution] on June 8, 2021, Tianning District Supervision Committee transferred Tang Jianwei's suspicion of corruption and bribery to Tianning District People's Procuratorate for examination and prosecution. On June 17, 2021, Tianning branch of Changzhou Public Security Bureau transferred Tang Jianwei's suspected fraud to Tianning District People's Procuratorate for examination and prosecution. [public prosecution] on September 22, 2021, Tianning District People's Procuratorate filed a public prosecution with Tianning District People's Court on Tang Jianwei's suspicion of corruption, bribery and fraud. [judgment of first instance] on February 9, 2022, Tianning District People's Court of first instance ruled that Tang Jianwei committed the crime of corruption, bribery and fraud, and imposed a combined punishment for several crimes, and decided to execute a fixed-term imprisonment of 19 years and a fine of 2.5 million yuan. Tang Jianwei did not appeal, and the judgment is now in force. Tang Jianwei is suspected of both job-related crimes and other crimes. How can the Discipline Inspection Commission and the public security organ cooperate well in the investigation and investigation? It can easily defraud tens of millions of yuan of management service objects. Why? What are the implications for doing a good job of supervision? Qi Tao: first of all, determine the investigation subject of mutual involved cases and hand over the clues of suspected fraud. In the process of handling Tang Jianwei's suspicion of corruption and bribery, our committee found that Tang Jianwei also cheated several units and individuals to pay project bid bond and other expenses by means of fictitious project, which is suspected of fraud. The crime of fraud belongs to the jurisdiction of the public security organ, but according to paragraph 2 of Article 34 of the supervision law, the whole case is mainly investigated by the supervision organ. In the early stage, in the process of investigating Tang Jianwei's suspected job-related crime, we initially collected relevant evidence of Tang Jianwei's suspected crime of fraud, such as the testimony of some victims and victims, relevant payment collection and payment vouchers, and Tang Jianwei's fake official seal specially used for fraud. After that, we transferred these clues to Tianning branch of Changzhou Public Security Bureau for investigation through the case management department. Secondly, strengthen cooperation and cooperation to do a good job in evidence collection. During the investigation of Tang Jianwei's suspected fraud by Tianning branch, as Tang Jianwei was detained by our commission, while basically completing the investigation of job-related crimes, we timely assisted Tianning branch to conduct interrogation at the detention point and provide relevant evidence materials of the case. The lesson of Tang Jianwei's case is very profound. As a party member and cadre, he is obsessed with stock speculation. He borrows money to speculate in stocks through financing leverage, and the investment failure leads to huge losses. In order to pay off the debt, it has embarked on the road of no return to law and crime step by step, from borrowing money from relatives, friends, classmates, colleagues, management service objects and even ordinary people, to borrowing usury, to fraud, corruption and bribery. At the same time, the amount of fraud by Tang Jianwei is particularly huge, with a single amount of up to 13 million yuan. He can easily cheat tens of millions of yuan. To a large extent, he uses his identity as a party member and cadre and his power to be responsible for engineering construction projects to obtain the trust of the victims and victims, and then commit a crime. Compared with ordinary fraudsters, Party members and cadres use their official identity to commit fraud, which is more harmful and has a worse impact. It not only causes huge losses of public and private property, but also damages the credibility of the government. In order to prevent the occurrence of such problems, discipline inspection and supervision organs should earnestly perform the primary responsibility of supervision, pay attention to the early and small, focus on the key areas, important posts and key links of centralized power and capital intensive, improve the normal long-term supervision and management system, and strengthen the education and guidance of Party members and cadres to make them consciously build a strong ideological defense line. Tang Jianwei collected 2.75 million yuan from the construction unit in the name of promoting the demolition work and used it to repay personal debts. Is this behavior suspected of fraud or corruption? Wang Weimin: for the determination of the nature of the act, there were two opinions on suspicion of fraud and corruption during the trial. At first, some comrades pointed out that this behavior constituted the crime of fraud, on the grounds that the East Expansion finance headquarters was a temporary coordination organization, did not set up a financial account, and had no fund revenue and expenditure, and was only responsible for the overall planning and coordination of various affairs of the construction of the development zone. Tang Jianwei's collection from the construction unit was a personal act beyond his authority and could not represent the East Expansion finance headquarters, so the collected money could not be converted into public property. Objectively, Tang Jianwei collected the money in the name of promoting the demolition work and promised to pay back the compensation later, but he used the money to repay his personal debt and failed to pay the compensation. Subjectively, Tang Jianwei had the motivation to illegally occupy the cheated money, which was in line with the criminal constitution of the crime of fraud. However, after further analysis and review, we believe that this behavior should be recognized as a crime of corruption. First of all, the distinction between the crime of fraud and the crime of corruption mainly depends on whether the perpetrator takes advantage of his position and what the object of infringement is. In this case, the key to confirming the nature of this behavior is whether Tang Jianwei's collection of 2.75 million yuan from the construction unit is a job-related behavior and whether the money is public property. Secondly, as the full-time Deputy commander-in-chief and office director of the East Expansion finance headquarters, Tang Jianwei is responsible for the daily work of the East Expansion finance headquarters and external work contact and coordination. According to the investigation, in order to promote the demolition work in the development zone and solve the demolition contradictions, Tang Jianwei proposed that the relevant construction units should take out the funds and then compensate and return them in other ways. The scheme has been approved by the relevant personnel of the Development Zone Investment and construction company and the demolition responsible unit in advance. At the same time, Tang Jianwei collected money in the name of the East Expansion finance headquarters and issued a collection certificate stamped with the official seal of the headquarters or signed by himself to the relevant construction units. In combination with his post responsibilities, Tang Jianwei's collection behavior should be recognized as a job behavior. Finally, Article 91 of the criminal law stipulates that public property includes state-owned property, collectively owned property of the working people, and social donations or special funds for poverty alleviation and other public welfare undertakings. Private property in the management, use or transportation of state organs, state-owned companies, enterprises, collective enterprises and people's organizations shall be regarded as public property. Although there is a word difference between "public property" and "public property", they are consistent in connotation. In this case, although the funds embezzled by Tang Jianwei came from the construction unit, because Tang Jianwei's collection behavior was a job-related behavior, and the East Expansion finance headquarters had no financial account, when the construction unit paid the money according to Tang Jianwei's requirements, the creditor's right and debt relationship that should be protected by law was established between the construction unit and the East Expansion finance headquarters. Although the money was kept and controlled by Tang Jianwei alone, However, it should be regarded as the public property managed by the East expansion and financing headquarters. Combined with the purpose of the money, we believe that Tang Jianwei violated the integrity of the duty behavior of state staff and the ownership of public property, which constitutes the crime of corruption. After Tang Jianwei left the East expansion and financing headquarters, he took out 300000 yuan to promote the demolition of the development zone. How to determine the amount of corruption crime? Wang Jutao: in judicial practice, the determination of the amount of corruption crime should be analyzed according to the specific circumstances of the case. Generally, as long as the perpetrator has the subjective intention of embezzling public funds and the embezzlement behavior is completed, the public funds are under the control of the perpetrator and meet the amount standard, it constitutes the crime of embezzlement, and part of the funds are used for official duties, which does not affect the completion of the crime of embezzlement and the determination of the amount of embezzlement. However, the situation of this case is relatively special. First of all, from the perspective of the completion form of the crime, the eastward expansion finance headquarters has no financial account, and the 2.75 million yuan collected by Tang Jianwei from the construction unit can not be recorded objectively, resulting in uncertainty in the form of Tang Jianwei's custody and control of the money, so his custody and control of the money is only part of the practice of corruption, At this time, it cannot be regarded as accomplished corruption. According to the theory of accomplished crime in criminal law, the act committed by the perpetrator can be recognized as a completed crime only if it has all the constituent elements specified in the specific provisions of criminal law. After the completion of the crime, the amount of the crime is solidified. In this case, since the starting point of Tang Jianwei's collection of 2.75 million yuan is to promote the demolition of the Development Zone, Tang Jianwei's corruption is accompanied by the promotion of the demolition work. The time point of his successful corruption is also the standard for judging the solidification of his corruption amount. Therefore, when Tang Jianwei completely ends the relevant official activities in the development zone and stops using the collected money for demolition, it should be recognized that he has completed his corruption and the amount of crime is fixed. Secondly, in terms of the time spent 300000 yuan, around July 2018, Tang Jianwei promoted the development of Wang in the zone
Edit：Anny Responsible editor：cc
Source：ccdi.gov.cn
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