According to Article 27 1 of the Criminal Law, the object of the crime of duty embezzlement is the property ownership of companies, enterprises or other units. Therefore, whether He Ping and others constitute the crime of duty embezzlement depends on whether He Ping and others use their position to infringe the property ownership of Sheikh Company.
He Ping and others took advantage of their positions to pay themselves high performance pay without the consent of the board of directors, making the property originally belonging to the company become the private property of He Ping and others, infringing on the ownership of this part of the company's property. No matter whether He Ping and others should get performance pay beyond the huge year-end performance award determined by the company's board of directors, even if the performance in 2008 and 2009 was exceptionally good, the four senior executives of He Ping should distribute more performance bonuses outside the year-end performance award according to the industry practice. However, before the company distributes the bonuses to He Ping and others according to the prescribed procedures, these bonuses are only the expected income of He Ping and others, and the ownership does not belong to He Ping and others, but belongs to the company. He Ping and others can't make their own plans to take away the bonuses based on the fact that these bonuses may belong to them in the future, instead of being distributed by the company according to the company's regulations.
He Ping and others took the money of Sheikh Company as their own, which violated the ownership of the money of Sheikh Company and the object of the crime of duty embezzlement. Therefore, He Ping and others constitute the crime of duty embezzlement.
Two. Clarify the problems in the judicial process
1. Explanation on whether another senior executive, Fang Jian, should be arrested and tried.
Five senior executives of Sheikh Stem Cell Genetic Engineering Co., Ltd. jointly formulated the Administrative Measures for Performance Appraisal of Administrative Staff and received bonuses. Four people, He Ping, were prosecuted and tried for corruption, while another senior executive, Fang Jian, was not prosecuted by the prosecution.
The reason why Fang Jian was not arrested and tried is that, based on the special protection for deputies to the National People's Congress, Article 32 of the Law on Deputies to the National People's Congress and Local People's Congresses stipulates that deputies to people's congresses at or above the county level shall not be arrested or put on criminal trial without the permission of the presidium of the people's congress at the corresponding level, and when the people's congress is not in session, without the permission of the Standing Committee of the people's congress at the corresponding level. Fang Jian is the vice chairman of CPPCC Heping District and a representative of the Municipal People's Congress. The arrest or prosecution of housing construction must be approved by the Standing Committee of Tianjin Municipal People's Congress. For some reason, the Standing Committee of Tianjin Municipal People's Congress does not allow the other party to take arrest measures and prosecute, which is beyond the control of the courts and procuratorial organs and does not violate the legal provisions that those who are guilty must be investigated.
In addition, the Tianjin Municipal People's Congress Standing Committee does not allow the arrest and prosecution of housing construction, which does not mean that housing construction is innocent, but only gives it special protection based on its special status as a NPC deputy. After He Ping and others are sentenced, if He Ping and others are convicted, housing construction must be investigated for criminal responsibility.
2. The legality of the procuratorial organ's application for postponement of the trial before the court session.
Nankai District People's Court accepted the case of He Ping, Gao Pengde and Chai Xinyu's duty occupation on August 3, 20/kloc-0, and it was accepted by the procuratorate twice on September 28, 20/kloc-0 and February 2065 438+03.
According to Article 168 of the Criminal Procedure Law, the people's court shall pronounce a judgment within one month after accepting a case of public prosecution, but not more than one and a half months at the latest. In other words, after the people's court decides to accept the case of public prosecution, the case will enter the trial procedure of first instance. Article 165 stipulates that in the course of court hearing, prosecutors may postpone the trial if they find that the public prosecution case needs supplementary investigation and make suggestions. The "trial period" here obviously refers to the trial procedure of first instance. Therefore, before the trial, the procuratorial organ applied to the court for an extension of the trial on the grounds of supplementary investigation, which is in line with the law.
Therefore, before the trial of this case, the Nankai District People's Court accepted the application of the procuratorate twice on September 28th, 20 10 and February 3rd, 20 10, and made a decision to postpone the trial, which did not violate the law.
3, Tianjin Nankai District People's court trial limit.
The Nankai District People's Court of Tianjin accepted the case of He Ping, Gao Pengde and Chai Xinyu's duty occupation on 20 10, and decided to postpone the trial twice. The time limit for postponing the trial is +00 from September 28th, 2065438 to June 27th, 2065438, +00 from June 3rd, 2065438 to June 6th, 2065438.
Article 168 of the Criminal Procedure Law stipulates that when a people's court accepts a case of public prosecution, it shall pronounce a sentence within one month, but no later than one and a half months. Under any of the circumstances specified in Article 126 of this Law, it may be extended for another month with the approval or decision of the Higher People's Court of a province, autonomous region or municipality directly under the Central Government.
The trial period of the first-instance procedure of He Ping et al. was recalculated and extended because the procuratorate requested to postpone the supplementary investigation twice before the trial, because the case was complicated and serious and was approved by the Tianjin Higher People's Court once, because the defender He Ping applied for a new judicial appraisal once, and because the defender Ye Xin requested to postpone the supplementary investigation once. Based on various factors, the case of He Ping and others is still under trial in the first instance.
4. Some words of the criminal suspect's confession are identical.
According to the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases, confessions of criminal suspects and defendants obtained by illegal means such as extorting confessions by torture, witness testimony and victim statements obtained by illegal means such as violence and threats are illegal verbal evidence.
The fact that some of the confessions of criminal suspects obtained by public security appraisal organs in the process of investigation are similar does not mean that public security appraisal organs used illegal means such as extorting confessions by torture in the process of interrogation, and they cannot be identified as illegal evidence and excluded according to the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases.
Resume of Xu Lanting: 1963 was born,198/kloc-0 was admitted to China University of Political Science and Law, and 1985 worked in Shenyang for three years after graduation. 1988 was admitted to China University of Political Science and Law as a postgraduate. 199 1 obtained a master's degree in litigation law and stayed on as a teacher. After that, he obtained a doctorate in procedural law from China University of Political Science and Law. From 65438 to 0993, he was transferred to law school as a full-time lawyer. In 2000, he was a visiting scholar in Britain for half a year, funded by the European Union. In 2002, he was named as an associate professor and served as a tutor for master students. In 2002, he was transferred to Junzejun Law Firm and later joined Beijing Wei Heng Law Firm.
In recent years, Xu Lanting visited Britain, the United States, France, the Netherlands and other countries. He is currently a member of the Criminal Business Committee of the National Lawyers Association and director of the Criminal Law Professional Committee of the Beijing Lawyers Association (2001-2008). Honorary member of National Criminal Defense Committee (NACDL), tutor of master students at China University of Political Science and Law, and visiting scholar at glamorgan University, UK. In 2003, the Criminal Defense Committee successfully applied for the project "Research on Criminal Defense Problems and Countermeasures" funded by Ford Foundation, and was selected as the honorary title of "Top Ten Lawyers in China" in 2005.