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　　Special guest

Yang Ye, Director of the Sixth Review and Investigation Office of the Commission for Discipline Inspection and Supervision of Jing’an District, Shanghai

Zhao Qihao Member of the Procuratorial Committee of the People’s Procuratorate of Jing’an District, Shanghai、Director of the Third Procuratorate Department

Wu Guoqiang, member of the Judicial Committee of Jing’an District People’s Court of Shanghai、Head of trial management team

　Editor’s note

This is a case of financial personnel of a state-owned enterprise misappropriating public funds for online gambling。In this case，Financial managers in state-funded enterprises，Is it certainly a subject of supervision，Can it be recognized as a national worker？Withdrawing public funds privately for gambling without returning them is embezzlement or corruption？Explained the fact of misappropriation of public funds to the leader of the unit，Later, the case was opened for investigation by the Supervisory Committee，Can it be recognized as surrender？Argued at trial that she had postpartum depression，Can it be used as a lighter sentence in this case、Mitigating circumstances？We invite staff from relevant units to analyze and discuss。

　Basic case facts:

Gu Songsong，Female，Crowd，Born in 1988，In March 2016, the party and government joint meeting of a new Shanghai company (a state-funded enterprise) was appointed as the manager of the company’s financial department，Removed from this position in October 2017，This position will be restored from February 2018 until the incident。In the meantime，Gu Songsong is fully responsible for the company’s financial accounts、Fund allocation and daily management of the financial department。

　April to December 2019，Gu Songsong takes advantage of his position，The false reason that company leaders need cash，Instruct the cashier or issue 57 cash checks on your own，With the above cash checks, a total of more than RMB 4.69 million was withdrawn from the company's bank account for personal use，Mainly used for online gambling。January 2020，Gu Songsong returned 60,000 yuan to the victim’s unit with the help of his family。

January 4, 2020，When the facts of Gu Songsong’s crime were not grasped by the case-handling agency，Proactively surrender Sky bet sports betting APP to your unit。March 23，Jing’an District Supervisory Committee opened an investigation into Gu Songsong-related issues，During investigation，Gu Songsong truthfully confessed the fact of embezzling public funds，And signed a confession of guilt and punishment。

　　Investigation process:

【Investigation】March 23, 2020，Jing’an District Supervisory Committee opened an investigation into Gu Songsong-related issues，And according to the procedures, it was approved to take retention measures on June 29。

【Transfer for review and prosecution】July 1, 2020，The Jing’an District Supervisory Committee transferred Gu Songsong’s case of suspected misappropriation of public funds to the Jing’an District People’s Procuratorate for review and prosecution。

【Public prosecution filed】August 4, 2020，The People’s Procuratorate of Jing’an District filed a public prosecution against Gu Songsong at the People’s Court of Jing’an District for suspected misappropriation of public funds。

【First instance judgment】September 16, 2020，Jing’an District People’s Court issued a first-instance verdict: Gu Songsong was guilty of misappropriation of public funds，Sentenced to nine years in prison，The stolen money involved in the case shall be returned to the victimized unit within a time limit according to law。Gu Songsong pleads guilty and accepts punishment。

　　1、Is Gu Songsong a subject of surveillance？Do the staff of state-funded enterprises certainly have the status of state staff？

Yang Ye: According to Article 15 of the Supervision Law，Managers of state-owned enterprises are subject to supervision。According to Article 4 of the "Jurisdiction Regulations of the National Supervisory Committee (Trial)"，"State-owned enterprise managers，Including wholly state-owned enterprises、Holding、Among state-funded enterprises such as joint-stock enterprises and their branches，By party organizations or state agencies、State-owned company、Enterprise、Public institution nomination、Recommended、Appointment、Approval etc.，Engaged in leadership、Organization、Management、Personnel who supervise other activities。”A new company is a state-funded enterprise，Gu Songsong was appointed as the financial department manager by the Party and Government Joint Meeting before the case，Fully responsible for management、Supervision of state-owned assets，Possess and actually exercise public power to supervise state-owned assets，Therefore Sky bet online sports betting APP download Gu Songsong is a subject of supervision。

The objects of supervision and state workers are concepts in different fields，The former is used for disciplinary inspection and supervision work，The scope of personnel jurisdiction can be determined，The latter can be applied to different crimes according to identity in the sense of criminal law。In this case，If Gu Songsong is a state worker，Article 384 of the Criminal Law shall apply to the crime of misappropriation of public funds，If not，The crime of misappropriation of funds under Article 272 of the Criminal Law shall apply。According to Article 6 of the 2010 "Opinions of the "Two Highs and Highs" on Several Issues Concerning the Specific Application of Laws in Handling Cases of Job-related Crimes in State-funded Enterprises，“Responsible for management in state-funded enterprises、Approval or research decision by the organization that supervises state-owned assets responsibilities，Representing its state-owned holdings、Organizations engaged in joint-stock companies and their branches、Leadership、Supervision、Operation、People who manage work，Should be recognized as a state worker。”In this case，After investigation by our committee，A new company sets up a company party and government joint meeting，Discuss and decide on the company's operation and management decisions, appointment of department heads and other major company matters，Responsible for supervising state-owned assets in state-funded enterprises、Organization of management responsibilities。Gu Songsong is managed by a new company、Approved by the organization responsible for supervising state-owned assets，Appointed as manager of the company’s financial department，Representing him in supervision of joint-stock companies、Operation、Management of state-owned assets，So Gu Songsong is a state worker。In addition，In state-funded enterprises，There is also a national staff identification，That is, Article 6 of the "Opinions" of the "Two Highs" mentioned above，"Approved by state agencies、State-owned company、Enterprise、Public institution nomination、Recommended、Appointment、Approval etc.，State-owned holding、Personnel engaged in official duties in joint-stock companies and their branches，Should be recognized as a state worker。”It can be seen from this，In state-funded enterprises，Not all personnel have the status of state workers of course，Only focus on the nature of public power，Meet specific appointment procedures sky bet online casino and conditions，Only can be recognized as a state employee in the sense of criminal law。

　　2、What is the warning significance of this case？Has the company where the case occurred taken corrective measures？

Yang Ye: This case has its own characteristics，Gu Songsong himself has a weak legal concept，We are in a key position in the company but we are stealing，Instead of making efforts to maintain and increase the value of state-owned assets，On the contrary, he “exploited” state-owned assets for his own use，At the same time, it exposed the obvious lack of integrity education for employees in the company，The company’s financial system is also in name only)，The company management did not correctly handle the relationship between employee trust and corporate supervision，Excessive use of trust instead of supervision，In just 8 months, more than 4.6 million yuan of state-owned assets were lost, but no one knew it。

In view of the characteristics of this case and the problems exposed，After investigating and handling the case, our committee made the “second half of the article” a top priority。Suggestions on hair production supervision，Urge enterprises to do ideological prevention，Strengthen daily financial inspection，Carry out regular self-examination，Implement the main responsibility of the leadership team，Trust must not be substituted for supervision。

In order to expand the "investigation and handling of a case、Education is a success，September 16, 2020，During the trial of Gu Songsong’s suspected misappropriation of public funds，Our committee organized 85 financial personnel from 13 key enterprises in the district to attend the event，In the form of a special warning education class，On-site statement to financial staff of district state-owned enterprises，Giving full play to the warning and deterrence effect of typical cases。

　　3、Gu Songsong’s misappropriation of public funds for gambling constitutes a crime of corruption or misappropriation of public funds？

Zhao Qihao: The important difference between the crime of misappropriation of public funds and the crime of corruption is whether the perpetrator has the purpose of illegal possession。Only if the perpetrator is found to have illegal possession purpose，In order to be considered as a crime of corruption。According to criminal law provisions and judicial practice，For the following behavior，Should be punished as corruption: (1) Absconding with embezzled public funds；(2) Using false invoices to settle accounts after misappropriating public funds、Destroy relevant sky bet online casino accounts and other means，It is difficult to reflect the misappropriated public funds in the unit’s financial accounts，And there is no return behavior；(3) Interception of unit income is not included in the account，Making it difficult to reflect the public funds held in the unit’s financial accounts，And there is no return behavior；(4) There is evidence that the perpetrator has the ability to return the embezzled public funds but refuses to do so，And conceal the whereabouts of embezzled public funds。

In this case，From the perspective of criminal methods，Gu Songsong simply writes cash checks and withdraws money without recording it in his account，The company’s accounts are not balanced，Will be discovered once the accounts are checked；From the perspective of fund use，The funds are used for online gambling；From a subjective perspective，Gu Songsong confessed that he hopes to return the company’s money by winning money from gambling in the future；Viewed from hindsight behavior，When the facts of the crime are about to be exposed，Gu Songsong did not abscond，And return 60,000 yuan to the victim。Based on the above aspects，It is impossible to determine that Gu Songsong has the purpose of illegal possession，Therefore it cannot be found to constitute a crime of corruption，Should be found to constitute the crime of misappropriation of public funds。

Article 2 of the "Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Cases of Misappropriation of Public Funds" issued by the Supreme People's Court in April 1998，On the crime of embezzlement of public funds，Three different situations should be distinguished for identification: misappropriation of public funds for personal use，Gamble、Smuggling and other illegal activities，Consisting the crime of misappropriation of public funds，Not subject to “large amount” and misappropriation time restrictions；Article 5，The amount of public funds embezzled is huge and will not be returned，Refers to the huge amount of embezzlement of public funds，Cannot be returned before the first instance judgment is pronounced due to objective reasons。Article 5 of the "Interpretation of Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Corruption and Bribery" issued by the "Two High and High People's Government" in April 2016，Misappropriation of public funds for personal use，Carrying out illegal activities，Amount above 3 million yuan，Should sky bet online sports betting be recognized as a “huge amount” stipulated in Article 384 of the Criminal Law。Criminal Law Article 384, Paragraph 1，The amount of public funds embezzled is huge and will not be returned，Sentence to fixed-term imprisonment of more than ten years or life imprisonment。According to the above regulations，In this case, Gu Songsong misappropriated more than 4.69 million yuan for online gambling，The return of 60,000 yuan in stolen goods can be considered for plot reasons，It is misappropriation of public funds for personal use，Carrying out illegal activities，And "the amount is not refundable"。

　　4、The defense lawyer argued that Gu Songsong suffered from postpartum depression，Can this be used as a lighter sentence in this case、Mitigating circumstances？Gu Songsong took the initiative to explain the problem to the leader of his unit，Later, the case was opened for investigation by the Supervisory Committee，Can it be recognized as surrender？

Wu Guoqiang: Article 18 of the Criminal Law stipulates: Mental patients cause harmful consequences when they cannot identify or control their own behavior，Identified and confirmed by legal procedures，Not criminally responsible，However, his family members or guardians should be ordered to strictly monitor and provide medical treatment；When necessary，Compulsory medical treatment by the government；A mentally ill person who has not completely lost the ability to recognize or control his own behavior commits a crime，should bear criminal responsibility，But the punishment can be lighter or reduced。This is the relevant provisions of our country’s criminal law regarding the criminal liability of mentally ill patients。Whether the mentally ill person has no capacity for criminal responsibility or has limited capacity for criminal responsibility，Should be confirmed by relevant qualified appraisal institutions，Do not simply accept the defendant’s oral confession。

During the court hearing，Proposed by Gu Songsong’s defense lawyer，Gu Songsong after giving birth to a daughter，Symptoms of mental depression，This postpartum depression triggers depression、Negative and pessimistic mood，Without good relief，Leading him into the thrill-seeking bad habit of gambling，Then implemented this case，I hope the court will consider this circumstance when sentencing。To this，We think，First，Gu Songsong did not submit relevant medical history information to this hospital，Even if she has symptoms of postpartum depression, it does not mean she Sky bet football has a mental illness。Secondly，Mental illness is not the same as lack of criminal responsibility or limited criminal responsibility，When a mentally ill person commits a crime while not in a state of illness or in a state of illness，Ability to fully control one's own behavior，It should still be determined that he has the ability to be criminally responsible。When the crime committed by the mentally ill is directly related to the weakened ability to identify and control，The punishment may be lighter or reduced；Vice versa，Then the punishment may not be given lightly or the punishment may be reduced。What needs to be noted is，For crimes committed by mentally ill patients with diminished responsibility，Only "can" be given a lighter or reduced punishment，Instead of "should"。Again，Gu Songsong embezzled more than 4.6 million yuan in public funds，Used for illegal activities of online gambling，To satisfy their pursuit of excitement、Unhealthy mentality of venting emotions，It can be seen that its recognition ability has not been affected but has been weakened，Therefore the punishment should not be given lightly or reduced。

Also，In this case，When the facts of Gu Songsong’s crime were not grasped by the case-handling agency，Proactively contact the legal representative of your unit，Truthful confession，And confessed the criminal facts of embezzlement of public funds，Should be regarded as automatic surrender、Truthful confession，Should be considered a surrender according to law。Gu Songsong during the investigation by the Supervisory Committee，Continue to stably and truthfully confess the crime，further expressed his attitude of surrender。On the issue of surrender，The perpetrator does not need to surrender to his/her unit，We have to surrender to the case handling agency again，Just surrender to any of the departments。

Overview of this case，Gu Songsong misappropriated public funds for illegal purposes，The amount is huge and non-refundable，Causing huge losses to national property，Has certain social harm，Should be sentenced to more than ten years in prison。At the same time，Considering that Gu Songsong surrendered、Truthful confession，Surrendered，Gu Songsong’s confession、Repentant attitude recognized，Reduce the punishment，Finally sentenced to nine years in prison。（Cheng Wei）

Editor: He Shan