During the nationwide unity in the fight against the novel coronavirus pneumonia epidemic, the Wuhan Red Cross Society was once again questioned when a man brought a box of 3M masks from the temporary warehouse of Red Cross disaster relief materials and put it in the trunk of a car with government license plates. the official website of the Wuhan Municipal Government announced on February 2 that when the General Office of the Wuhan Municipal Government participated in the municipal emergency material reserve and management work conference, the epidemic prevention and control staff found the warehouse to receive masks and other protective equipment, and the box of 3M was raised Masks have been registered and approved in a unified manner, but in Wuhan, a heroic city where essential medical equipment such as masks are in short supply, this incident is really difficult to imagine in the difficult conditions when many medical staff on the front line of the fight against the epidemic can only use homemade masks to carry out rescue. As a legal person, I decided to extend this matter and intend to talk to readers about the "crime of misappropriation of specific funds and goods" in China's criminal law in combination with real cases.

1. Relevant laws and regulations

1, Criminal Law of the People's Republic of China

Article 273:Where funds and materials used for disaster relief, emergency rescue, flood prevention, preferential care, poverty alleviation, migration, or relief are misappropriated, and the circumstances are serious, causing major damage to the interests of the State and the people, the person directly responsible shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

2Provisions on Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)

Article 86:Anyone who misappropriates funds and materials used for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief and is suspected of any of the following circumstances shall file a case for prosecution:

(1) Misappropriating specific funds and goods in the amount of 5,000 yuan or more;

(2) Causing direct economic losses to the state and the people in the amount of 50,000 yuan or more;

(3) Misappropriating specific funds and materials on multiple occasions despite failing to meet the above-mentioned amount standards, or causing serious difficulties in the people's production and livelihood;

(4) Seriously damaging the country's reputation, or causing a negative social impact;

(5) Other circumstances that cause major harm to the interests of the state and the people.

Article 87:"Multiple times" in these Provisions refers to three or more times.

Article 88:In these Provisions, "although the above-mentioned amount standard has not been met" refers to a term close to the above-mentioned amount standard and has reached more than 80 percent of that amount.

3Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Impeding the Prevention and Control of Sudden Infectious Disease Epidemics and Other Disasters

Article 14, paragraph 2

Where the misappropriation of funds and materials used for disaster relief, preferential care, relief and other such purposes for the prevention and control of sudden infectious disease epidemics and other disasters constitutes a crime, the person directly responsible shall be convicted and punished as the crime of misappropriating specific funds and goods in accordance with the provisions of article 273 of the Criminal Law.

2. Related cases

Case one

Xu Zheng was tried in the second instance for the crime of falsely declaring the registered capital and misappropriating specific funds and property

Case No.: (2013) Jizhong Sentence Zhong Zhong Zi No. 62

Find out the facts:

In June 2007, while seconded to the Jilin Provincial Emergency Rescue Promotion Center of the Ministry of Civil Affairs as deputy director, the defendant Xu Zheng obtained the approval of the Jilin Provincial Public Institution Registration Administration Bureau from September 2007 to 2008 by taking advantage of the document "Notice on the Establishment of a National Vocational Training Base for Emergency Rescuers" issued by the Emergency Rescue Promotion Center of the Ministry of Civil Affairs /b14>In February of that year, he successively applied for the establishment of Jilin Provincial National Emergency Rescue Training and Appraisal Center (hereinafter referred to as the Training Center) and the Jilin Provincial National Emergency Rescue and Rescue Center (hereinafter referred to as the Center), and the training center was "collectively referred to as the two centers"), and obtained the function of fundraising without the approval of the civil affairs department, and the defendant Xu Zheng was the legal representative of the above two centers. On May 20, 2008, the two centers were jointly established, and in 2010, due to Xu Zheng's status as a civil servant, the legal representative of the two centers was changed to Zhu Moumou.

In November 2009, while conducting rescue training in Songyuan City, Jilin Province, defendant Xu Zheng met Li Moujia, director of the Songyuan Transportation Management Office, and the defendant Xu Zheng mobilized him to donate, and Li Moujia represented the Songyuan Transportation Management Office to raise RMB 100,000 in the "Love Donation" activity in 2009 by his unit, in 2009 On November 10, he transferred to the center to donate to the disaster area and alleviate poverty through the center, but the defendant Xu Zheng changed the purpose of the donor's donation and diverted it for other purposes.

In December 2009, defendant Xu Zheng approached Song Zhiguo, chairman of Jilin Cornell Pharmaceutical Distribution Co., Ltd., and mobilized him to donate. After Song Zhiguo agreed, he arranged for the financial staff of the unit to transfer RMB 100,000 to the center on December 7, 2009 to support the disaster area, but Xu Zheng changed the purpose of the donation without authorization and used it for the administrative expenses of the center.

During the 2009 Yushu earthquake, Song Zhiping, chairman of Jilin Cornell Chemical Industry Co., Ltd., befriended defendant Xu Zheng after donating drugs worth RMB 1 million to the disaster area through the center. In July 2010, during the flood disaster in Jilin Province, Song Zhiping, mobilized by Xu Zheng, agreed to donate RMB 500,000 to help floods outside the Jilin area, and remitted RMB 500,000 to the central account on July 28, 2010. On August 3, 2010, Xu Zheng instructed Li Mouyi, a staff member of the center, to change the purpose to the project of rescue booths and rescue bags for Party A when filling out the donation agreement. Unauthorized change of the purpose of the donor's donation. On August 16, 2010, Xu Zheng remitted the above RMB 500,000 to the equipment company in two parts. In November 2010, the completed donation agreement was mailed to Jilin Cornell Chemical Industry Co., Ltd. for sealing.

The court of first instance held

Defendant Xu Zhengqi, as a person in charge directly responsible for the custody, distribution, and use of specific funds and materials, misappropriated donations for fundraising and disaster relief, and the circumstances were serious, causing major damage to the interests of the state and the people, which constituted the crime of false capital contribution and the crime of misappropriating specific funds and materials. The defendant Xu Zheng and his defenders claimed that the 100,000 yuan donated by the Songwon Transportation Management Office, the 500,000 yuan donated by Cornell Chemical Industry Company, and the 100,000 yuan donated by Cornell Pharmaceutical Company were all administrative expenses and rescue research and development funds donated to the two centers. Witnesses Song Moujia, Song Mouyi, Li Moujia, Yu Mouyi, Lu Moujia and others had no interest in defendant Xu Zheng, the facts confirmed by their testimony were true and credible, and the donation agreement was unilaterally issued by defendant Xu Zheng in the form of a standard contract and obtained by improper means, so the facts confirmed by the documentary evidence were not accepted, and the defense opinions of defendant Xu Zheng and his defenders were not supported.

The court of second instance held

The original judgment found that the facts were clear, the evidence was true and sufficient, the law was applied correctly, and the trial procedures were lawful, and should be upheld.

Case 2

He Qingxiu embezzled, embezzled funds, embezzled his position, and embezzled specific funds and goods in the second instance

Case No.: (2018) Gan 04 Criminal Final No. 73

Find out the facts:

Since 2013, the defendant in the original trial, He Qingxiu, has taken more than 600,000 yuan of national poverty alleviation policy funds by falsely reporting projects being implemented or completed by others, or falsely reporting real projects in the name of others, which are used to return the arrears of other projects in the village or to be included in the small treasury for other expenses at the village level.

The court of first instance held

The defendant in the original trial, He Qingxiu, as the secretary of the village party branch and the chairman of the villagers' committee, took advantage of his position to cooperate with others to embezzle state project funds while assisting the people's government in administrative work, and his behavior constituted the crime of embezzlement. The defendant in the original trial, He Qingxiu, took advantage of his position to embezzle the collective property of the village, and the amount was relatively large, and his behavior constituted the crime of embezzlement of duty; The defendant in the original trial, He Qingxiu, misappropriated the village collective property for a relatively large amount, and misappropriated the village collective property for more than three months, and misappropriated the village collective property for profit-making activities, and his behavior constituted the crime of misappropriating funds; The original defendant He Qingxiu misappropriated funds of the national poverty alleviation policy, the circumstances were serious, the social impact was bad, and his behavior constituted the crime of misappropriating specific funds and goods.

The court of second instance held

With regard to the reasons for appeal and defense opinions that the existing evidence submitted by the appellant He Qingxiu and his defender could not be found to constitute the crime of misappropriating specific funds and property, after investigation, the confession of the appellant He Qingxiu, the testimony of witnesses Wang Mou5, Wang Mou2, Bi Mou1, Zhang Mou1 and others, and relevant project approval slips confirmed that the appellant He Qingxiu obtained funds from national poverty alleviation projects by falsely reporting projects that others were implementing or had been completed, or by falsely reporting real projects in the name of others. Although the project objectively and truly exists, the funds of the national poverty alleviation project must be earmarked for special use, and it is not allowed to arbitrarily divert them to other expenses in the village in violation of the financial management system of the special use of specific funds and materials. Moreover, the appellant He Qingxiu's misappropriation of funds from the national poverty alleviation project had a bad social impact, and the appellant He Qingxiu, as the directly responsible person, should bear the corresponding criminal responsibility. Therefore, the grounds of appeal and defense opinions put forward by appellant He Qingxiu and his defenders cannot be established and are not accepted. The appellant He Qingxiu misappropriated 676,586.5 yuan of funds earmarked by the state for poverty alleviation projects, the circumstances were serious and the social impact was bad, and his behavior violated the provisions of Article 273 of the Criminal Law of the People's Republic of China, constituting the crime of misappropriating specific funds and goods.

III. Analysis

1. Standards for filing cases for the crime of misappropriating specific funds and goods: According to Article 86 of the Provisions on Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II), if the amount of misappropriated funds and materials used for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, and relief funds and materials is more than 5,000 yuan, a case shall be filed for prosecution in accordance with law. In addition, if funds and materials used for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, migration, or relief are misappropriated under any of the following circumstances, a case shall also be filed for prosecution: the amount of direct economic losses caused to the state and the people is more than 50,000 yuan; Although the above amount standards have not been met, they have repeatedly misappropriated specific funds and materials, or caused serious difficulties in the production and livelihood of the people; Seriously damage the reputation of the country, or cause bad social impact; Other circumstances that cause major damage to the interests of the state and the people.

In hearing cases, the people's courts shall give convictions and sentences mainly in accordance with the provisions of Article 273 of the Criminal Law of the People's Republic of China. If convicted of this crime, the circumstances shall be serious and cause major damage to the interests of the state and the people.

2. The target of this crime is specific. The crime of misappropriating specific funds and goods is committed against seven items: disaster relief, emergency rescue, flood prevention, preferential care, poverty alleviation, immigration, and relief. It should be noted that the target of the crime clearly covers "money" and "property".

In addition, according to the interpretation of the official websites of the Central Commission for Discipline Inspection of the Communist Party of China and the State Supervision Commission of the People's Republic of China, the crime of embezzlement of specific funds and materials includes:

(1) "Disaster relief funds and materials": refers to the special funds and materials allocated by the state to areas affected by natural disasters;

(2) "Emergency funds and materials" refers to the special funds and materials allocated by the state to rescue due to dangerous situations due to natural disasters;

(3) "Flood prevention funds and materials" refers to the special funds and materials allocated by the state for flood prevention and flood tide prevention;

(4) "Preferential funds and materials" refers to the special funds and materials allocated by the state to the recipients of preferential treatment and pensions;

(5) "Poverty alleviation funds and materials" refers to special funds and materials used for poverty alleviation;

(6) "Immigration funds and materials" refers to the special funds and materials allocated by the state for resettlement;

(7) "Relief funds and materials" refers to the special funds and materials used by the state for social relief and natural disaster relief.

3. The subject of the crime of misappropriating specific funds and goods: According to the second paragraph of Article 14 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Impeding the Prevention and Control of Sudden Infectious Disease Epidemics and Other Disasters, the subject of the crime is the person directly responsible for misappropriating specific funds and goods, although generally the "directly responsible person" is mainly a state functionary, but it also includes other personnel.

● Conclusion

According to media reports, after investigation and verification by the Hubei Provincial Commission for Discipline Inspection and Supervision, the relevant leaders of the Wuhan Red Cross have been punished by the Hubei Provincial Commission for Discipline Inspection and Supervision. What is more worth pondering is that neither punishment nor conviction and sentencing is our ultimate goal, and before the disaster, we should establish an open and transparent system, establish an efficient and conscientious work attitude, and should not live up to the selfless dedication of medical staff fighting the epidemic and the trust and love of compatriots at home and abroad.

(This article is translated by software translator for reference only.)