People v. Sheng Xx and Zheng Xx (Case of Embezzlement)
(Case No.187 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Crime of embezzlement, Futures trading, Abnormal trading points, Determination of the amount of embezzlement
Key Point
For an act where a state functionary takes advantage of his office to embezzle public funds by adding mutual trading links in futures trading, such behavior may be found as the crime of embezzlement in accordance with the law. During the examination, attention should be paid to the analysis and demonstration of the abnormality of the trading behavior and the relevance between the offender’s gains and the advantage of his office. With regard to the amount of embezzlement, it may be determined on the basis of the amount of actual gains obtained by the offender in light of the specific circumstances of the case. During the court trial, the procuratorial organs may use multimedia evidence-presenting methods, comprehensively present evidence by dynamic process simulation diagrams, mind maps, and other tools, and review the criminal acts and their consequences, so as to enhance the effectiveness of the charges in court trials.
Relevant Provisions
Article 25, 382 and 383 of the Criminal Law of the People's Republic of China
Article 170 of the Criminal Procedure Law of the People's Republic of China (Rev. 2018)
People v. Sang X (case of taking bribes, abusing his office by the personnel of a state-owned company, trading by using undisclosed information)
(Case No.188 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Crime of taking bribes, Crime of abusing his office by the personnel of a state-owned company, Crime of trading by using undisclosed information, Equity right to yields, determination of losses
Key Point
When handling criminal cases of taking bribes in the field of investment and financing, the procuratorial organs shall accurately determine the nature of the benefit transfer, and exam carefully the background and methods of the investment and financing, the authenticity of financing needs, the risks that the offender takes, the proportion of the risk to the gains, and other evidence. In handling criminal cases of abusing his office by the personnel of a state-owned company, the procuratorial organs shall objectively determine the scope of public property losses caused by the offender's acts. The expected yields that shall have been obtained by the state-owned company can be included in the number of losses. In handling criminal cases involving trading by using undisclosed information, with regard to the determination of key elements such as the scope of inside information and undisclosed information and the amount of profit from convergent trading, the procuratorial organs shall obtain opinions from securities regulatory departments, stock exchanges, and other professional institutions, and conduct examination and evaluation by taking full account of all evidence of the case.
Relevant Provisions
Article 168, 180, 383, 385 and 386 of the Criminal Law of the People's Republic of China
Article 5 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases regarding the Trading by Using Undisclosed Information
People v. Li X et al. (case of misappropriating public funds)
(Case No.189 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Crime of misappropriating public funds, For personal use, Recovery of illegal gains
Key Point
When handling criminal cases of misappropriating public funds in the financial sector, it is crucial to substantially examine key elements such as “for personal use”. Where individuals use public funds of an entity in violation of regulations for personal profit-making and pose a risk to the security of the funds, if the funds are used superficially by the entity, but actually by individuals, it can be found as misappropriating public funds “for personal use”. Where others directly benefit from the offender’s crime of misappropriating public funds, despite that their acts do not constitute a crime or are not held criminally liable, if they are aware of the illegality of the benefits, such direct benefits shall be recognized as illegal gains, and the procuratorial organs may recommend the supervisory organ to pursue recovery or order restitution in accordance with the law.
Relevant Provisions
Article 25, 64 and 384 of the Criminal Law of the People's Republic of China
Article 46 of the Oversight Law of the People's Republic of China
Article 208 of the Regulation on the Implementation of the Oversight Law of the People's Republic of China
Article 6 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Embezzlement and Bribery
Article 1 and 8 of Interpretation of the Supreme People's Court of Several Issues on the Specific Application of Law in the Trial of Cases about Misappropriating Public Funds
People v. Song Xx (case of issuing financial documents or instruments in violation of regulations, illegally granting loans, and taking bribes as a non-state functionary)
(Case No.190 of the Guiding Case of the Supreme People's Procuratorate)
Key Words
Issuing financial documents or instruments in violation of regulations, Illegally granting loans, Subject of the liability for taking bribes as a non-state functionary
Key Point
Whether an individual exercising public powers within a collective economic organization is considered a state functionary shall be determined on the basis of factors such as the equity structure of the collective economic organization and the public duties that he performs. An employee of a bank or other financial institution commits the crime of issuing financial documents or instruments in violation of regulations, where, by serious misbehaviors, he improperly performs his duties in violation of regulations or exceeds his authority to issue letters of credit or other letters of guarantee negotiable instruments, certificates of deposits, or certificates of financial standing.
Relevant Provisions
Article 93, 163, 184(1), 186 and 188(1) of the Criminal Law of the People's Republic of China
Article 15 of the Oversight Law of the People's Republic of China
Article 31 and 43 of the Regulation on the Implementation of the Oversight Law of the People's Republic of China
