What is the crime of inducing collective decision-making to lend public funds?
From the case of Qin Dujun, the former chairman of Chongqing Yunyang County Dadi Surveying and Mapping Co., Ltd.
Special Guest
Lu Wei, Director of the Seventh Examination and Investigation Office of the Disciplinary and Supervision Commission of Yunyang County
Wu Song, Director of the Case Trial Office of the Commission for Discipline Inspection and Supervision of Yunyang County
Li Jie, Director of the Second Procuratorate of the People's Procuratorate of Yunyang County
Wang Lin, Deputy Chief of Criminal Division of Yunyang County People's Court
Editor's note
This is a typical corruption case in which the "top leader" of a state-owned enterprise misappropriated public funds under the guise of collective decision-making.
In this case, Qin Dujun repeatedly inquired about the case before he was detained. Does it violate the party's political discipline?
Why does it still constitute a crime of misappropriation of public funds through collective research?
Qin Dujun embezzled a huge amount of public funds and should be sentenced to fixed-term imprisonment of more than five years.
How to strengthen the management of the "top leaders" of state-owned enterprises, and realize the promotion of reform and governance with cases?
We specially invite the staff of relevant units to analyze it.
Basic case:
Qin Dujun, male, born in July 1972, a member of the Communist Party of China, worked in Chongqing Yunyang County Housing Management Office, Yunyang County Real Estate Registration Center, Yunyang County Geodetic Surveying and Mapping Co., Ltd. (hereinafter referred to as Geodetic Surveying and Mapping Company) and other units. At that time, he was the chairman of the Geodetic Surveying and Mapping Company.
Violating political discipline.
In September 2020, Qin Dujun learned that after the Yunyang County Commission for Discipline Inspection and Supervision launched an investigation into his violations of discipline and law, he repeatedly inquired about the case from witnesses who had been questioned by the County Commission for Discipline Inspection and Supervision, and obtained some accounts from a related person, Li Mou. Credentials to cope with organizational review investigations.
On September 24, Qin Dujun took the initiative to go to the County Commission for Discipline Inspection and Supervision to explain some disciplinary violations, but did not explain the suspected crime of duty.
Violation of work discipline.
In 2018, Qin Dujun's friend Ye Mou pledged 2 million yuan to the bank for profit-making activities in the name of relatives and friends.
In October 2019, Ye Mou borrowed 2 million yuan from Qin Dujun for the loan renewal and capital verification due to lack of funds. On October 14, Qin Dujun lent the company's capital 1.5 million yuan and his own capital 500,000 yuan to Ye Mou without authorization (No interest charged).
3 days later, Qin Dujun returned 1.5 million yuan to the company.
Embezzlement of public funds.
In September 2019, Qin Dujun and real estate developer Hua Moumou and others agreed to invest 30 million yuan in joint development of real estate with Hua Moumou and others, and receive fixed dividends at an annual interest rate of 100% after one year, and recover 6,000 yuan with principal and interest. million.
In addition to his own funds and misappropriation of the company's "small treasury" fund of 800,000 yuan, Qin Dujun's share capital is still short of 6.5 million yuan. Therefore, in April 2020, he organized a "three major and one big" special meeting and board of directors, under the guise of making profits for the company. In the name of persuading the company's management to lend 6.5 million yuan of public funds to Hua Moumou and others in the name of purchasing office space to charge 20% of the annual interest.
After the incident in October 2020, 7.3 million yuan was recovered.
The crime of accepting bribes and taking advantage of influence to accept bribes.
From December 2000 to January 2017, Qin Dujun took advantage of his position to provide assistance for relevant personnel to undertake engineering projects by himself or through the official behavior of staff from other countries, and accepted a total of more than 1.48 million yuan in bribes.
bribery.
From 2014 to 2016, Qin Dujun engaged in profit-making activities in violation of regulations. In order to seek illegitimate interests, he successively gave money to state staff Li Moumou (handled in a separate case) totaling more than 900,000 yuan, and Qin Dujun obtained illegitimate benefits totaling 5 million yuan (recovered) .
Investigation process:
[Case filing, review and investigation] On September 23, 2020, the Yunyang County Commission for Discipline Inspection and Supervision initiated a case review and investigation on Qin Dujun and took lien measures against him the next day.
[Party Discipline and Government Sanctions] On March 10, 2021, with the approval of the Yunyang County Party Committee, the Yunyang County Commission for Discipline Inspection and Supervision decided to give Qin Dujun the punishment of expulsion from the party and public office.
[Transfer for review and prosecution] On March 11, 2021, the Yunyang County Commission for Discipline Inspection and Supervision transferred the case of Qin Dujun for taking bribes, using influence to accept bribes, misappropriating public funds, and offering bribes to the Yunyang County People's Procuratorate for review and prosecution.
[Public Prosecution] On April 19, 2021, the Yunyang County People's Procuratorate filed a public prosecution with the Yunyang County People's Court for Qin Dujun's alleged crime of accepting bribes, taking bribes by using his influence, embezzling public funds, and offering bribes.
[First-instance judgment] On August 12, 2021, the Yunyang County People's Court convicted Qin Dujun of accepting bribes, using influence to accept bribes, embezzling public funds, and offering bribes, and sentenced him to nine years in prison and a fine of 400,000 yuan. .
Qin Dujun refused to accept and appealed.
[Second-instance ruling] On September 1, 2021, the Chongqing No. 2 Intermediate People's Court made a ruling to reject the appeal and uphold the original judgment.
1 Before being detained for investigation, Qin Dujun repeatedly inquired about the facts of the case, did he violate political discipline?
How to understand the bottom line terms against organizational censorship?
Lu Wei: Article 56 of the Regulations on Party Disciplinary Sanctions clearly stipulates four types of behaviors against organizational censorship: first, colluding confessions or forging, destroying, transferring, or concealing evidence; second, preventing others from reporting and providing evidence; The fourth is to provide false information to the organization and cover up the facts.
At the same time, a catch-all clause was set up, that is, "there are other acts against the censorship of the organization".
During the investigation, there was a dispute as to whether Qin Dujun's inquiring into the case was a violation of political discipline.
The task force believed that Qin Dujun, before being placed under lien for investigation, learned that our commission might investigate his violations of discipline and law, and then repeatedly inquired about the case from witnesses who were questioned by our commission, and obtained some account vouchers from a related person, Li, in order to deal with the organization. Review survey.
After Qin Dujun took the initiative to come to the case, Gu Zuo told him that according to the situation he inquired, he explained the problem and avoided the main problem.
After analysis and judgment, we believe that Qin Dujun's behavior does not belong to the above four categories of behaviors against organizational review, but his behavior to deal with organizational review after inquiring into the case is confrontational and conforms to other behaviors against organizational review stipulated in the bottom line.
Wu Song: Being loyal and honest to the party is the basic requirement of the party constitution for party members, and it is also the basic obligation of party members.
Article 56 of the Regulations on Party Disciplinary Sanctions uses "other behaviors that oppose the censorship of organizations" as a bottom line, in order to prevent "one thousand omissions".
In practice, some party members and cadres "played tricks" and "inspired their hearts", deliberately resisting the organization's censorship and investigation, and the methods are becoming more and more concealed.
Therefore, when identifying such violations of discipline, we must adhere to the combination of subjectivity and objectivity, firmly grasp the nature of "antagonism", combine the inquiring process with subsequent confrontational behaviors, grasp the "integrity" of confrontation, and at the same time Strictly grasp it, be cautious, and avoid generalization.
Combined with this case, firstly, Qin Dujun inquired about the case to the relevant personnel of the County Public Security Bureau, the County Taxation Bureau, as well as related personnel Li Moumou, Zhu Moumou and other people, and subjectively had the intention to interfere and hinder the review and investigation work.
Second, during the investigation and investigation, Qin Dujun avoided the important and ignored the problem according to the investigation. His behavior violated the obligation of loyalty and honesty to the party, and also affected the normal order of the discipline inspection and supervision organs.
The combination of other evidence is sufficient to determine that Qin Dujun complies with other acts of confrontation with the organization's review stipulated in Article 56 of the Party Disciplinary Punishment Regulations.
2 Qin Dujun has repeatedly misappropriated public funds, why are some classified as disciplinary violations and others as crimes?
Why does it still constitute the crime of misappropriation of public funds through collective research?
Wu Song: Article 384 of the Criminal Law stipulates three types of crimes of misappropriation of public funds: First, state functionaries take advantage of their positions to misappropriate public funds for personal use and carry out illegal activities; Carry out profit-making activities; thirdly, the amount of misappropriation of public funds is relatively large, which has not been repaid for more than three months.
During the trial, we disputed whether Qin Dujun’s misappropriation of 1.5 million yuan of public funds to Ye Mou constituted a violation of discipline or was suspected of a crime. The reasons for the fact that it was finally determined to be a violation of discipline were as follows: First, the use of the public funds was for bank Renewal of loan capital verification is not an illegal activity.
Second, it is not a for-profit activity.
Although Ye Mou borrowed from the bank in the name of another person for profit-making activities, the direct use of the public funds is to renew the loan and verify the capital, and the public funds did not directly generate economic benefits. for-profit activities.
Again, it does not meet the criteria for a longer period of misappropriation.
The embezzlement of public funds took only 3 days before and after, which did not exceed the time standard of 3 months stipulated by the Criminal Law.
Finally, this behavior is a violation of the Party's work discipline.
Qin Dujun's behavior of lending 1.5 million yuan of public funds to Ye without the decision of the company's board of directors violated the company's financial system, improperly performed his duties, and violated the party's work discipline.
Lu Wei: According to item (1) of Article 4 of the 2003 Minutes of the National Court Trial of Economic Crime Cases, “the unit leaders collectively decide to use public funds for personal use, or the unit responsible person decides for the benefit of the unit. If public funds are used by individuals, they shall not be convicted and punished for the crime of misappropriation of public funds.” There are two major points of controversy in this case. First, Qin Dujun’s loan of the 6.5 million yuan in the form of the company’s collective research and decision-making does not constitute a crime. .
The second is that Qin Dujun actually promised to give the company 20% of the annual interest. Whether it is consistent with the embezzlement of public funds by the person in charge of the unit for the benefit of the unit, and it does not constitute a crime.
We believe that Qin Dujun, in the name of the collective, misappropriated 6.5 million yuan of public funds and personally decided to misappropriate 800,000 yuan of "small treasury" funds, which constituted the crime of misappropriation of public funds.
The reasons are as follows: First, as the chairman of a state-owned company, Qin Dujun meets the requirements for the main body of a state employee.
The second is that Qin Dujun misappropriated 6.5 million yuan of public funds in order to raise funds for personal investment and obtain high interest margins from it, with the intention of misappropriating public funds.
The third is that Qin Dujun borrowed the idle funds of the unit to collect interest through the seemingly legitimate collective research and decision-making form. In fact, it was to cover up his personal intention of misappropriating public funds. Although the interests of the unit and the interests of individuals coexist, in fact, the interests of the individual are far greater than the interests of the unit, and The unit bears the huge risk that the funds cannot be recovered.
Fourth, through Qin Dujun's proposal, Dadi Surveying and Mapping Company lent 6.5 million yuan of public funds to Hua Moumou and others under the guise of purchasing office space and charged 20% annual interest. The management of Dadi Surveying and Mapping Company subjectively believed that the 6.5 million yuan was a loan, and The yield is only 20%.
However, Qin Dujun and Hua Moumou and others reached an agreement to use the 6.5 million yuan as the investment fund of Qin Dujun, which is not the true meaning of the collective decision of the Geodetic Surveying and Mapping Company.
Li Jie: In this case, Qin Dujun’s misappropriation of 6.5 million yuan of idle funds of the company seems to have been decided by the unit leaders collectively, but Qin Dujun concealed the real intention and real profit ratio of personal investment, in essence, to raise personal investment funds for high interest rates.
Qin Dujun promised to give the company an annual interest of 20%, which is only one-fifth of its real profit, just to encourage the company to lend money.
Qin Dujun deceived and induced other decision-makers to have a wrong understanding. Even if the collective decision of the unit is finally formed, it cannot be regarded as representing the will of the unit, nor can it be a reason for the crime of misappropriation of public funds.
In the process of handling cases, if you don’t look at the nature of the behavior, but only look at the form after a “collective research decision”, no crime will be dealt with. shield".
3 Does Qin Dujun constitute a surrender?
The amount of embezzlement of public funds is huge and should be sentenced to more than five years in prison. Why is the sentence only three years in this case?
Li Jie: According to the "Opinions on Several Issues Concerning the Determination of Sentencing Circumstances such as Surrender and Merit in Handling of Duty Crime Cases" by the "two high schools", the establishment of a surrender requires both automatic surrender and a truthful confession of one's own crime.
During the review and prosecution of this case, there is no dispute over Qin Dujun's voluntary surrender, but there is a dispute over whether he truthfully confessed his crime.
According to the "Opinions of the Supreme People's Court on Several Specific Issues Concerning Handling Voluntary Surrender and Meritorious Service" on "truly confessing one's crimes": when a criminal suspect voluntarily surrenders, although he does not explain his main crime facts, he still knows the main crime when the judiciary knows his crime. Those who have voluntarily confessed the facts before should be deemed to have truthfully confessed their crimes.
From this, it can be seen that Qin Du's army must take the initiative to confess before the supervisory organ has mastered the main criminal facts, in order to be recognized as a truthful confession of his crimes.
After Qin Dujun voluntarily surrendered to the crime, he avoided the important and ignored the issue. He only talked about the issue of disciplinary violations, and did not talk about the suspected bribery crime that the county supervisory committee had already grasped. He did not have the requirements for a truthful confession of the fact of bribery. Therefore, Qin Dujun could not be regarded as surrendering himself in the crime of bribery.
Wang Lin: In this case, Qin Dujun is suspected of four crimes: accepting bribes, taking bribes by using influence, offering bribes and embezzling public funds.
Although Qin Dujun voluntarily surrendered to the crime, he did not truthfully confess the facts that the supervisory organ had already grasped about his bribery, and could not be regarded as surrendering, but Qin Dujun took the initiative to explain the criminal facts of accepting bribes, taking bribes by using influence, and embezzling public funds that the county supervisory committee had not yet grasped during the lien period. , and it is not the same crime as the crime of bribery. For these three crimes, it can be determined that it constitutes surrender.
Although Qin Dujun had embezzled a huge amount of public funds, he should have been sentenced to more than five years in prison, but considering that Qin Dujun’s crime of embezzling public funds has the circumstances of surrendering; all the embezzled public funds have been recovered without causing any loss of national interests; and he actively paid in advance during the court trial stage Illegal gains and fines, and a good attitude of confession and repentance.
To sum up, this court, in accordance with the provisions of paragraph 1 of Article 67 of the Criminal Law, will reduce the punishment and impose a sentence of less than five years.
4 How to sum up the lessons of this case, strengthen the supervision and management of the "top leaders" of state-owned enterprises, and realize the promotion of reform and governance with the case?
Lu Wei: After investigating and handling the case, our commission urges the relevant responsible departments to continuously improve the system and mechanism, increase supervision, and effectively strengthen the management of the "top leaders" of state-owned enterprises through special education, special rectification, and special governance.
The first is to highlight the education orientation, shoot a special warning education film for the "top leaders" of state-owned enterprises with Qin Dujun and others as the typical, and carry out special education in combination with "discipline by case, argument by case, morality by case, and responsibility by case". People around people" warns the "top leaders" of state-owned enterprises to keep the shock and deterrence constant.
The second is to highlight the problem orientation, issue supervision proposals to the county state-owned assets management service center and other units, urge relevant units to rectify problems such as inadequate implementation of supervision and management responsibilities, implement supervision responsibilities, plug system loopholes, and deepen "promoting reform with cases" .
At present, a total of 48 systems have been established and improved in terms of capital supervision.
The third is to highlight the governance orientation, carry out special rectification of outstanding problems of state-owned enterprises, and analyze corruption cases in state-owned enterprises to find out the risk points of honest and clean government. Carry out special rectification of the list, explore the establishment of the "Positive and Negative List of Honesty and Self-discipline of "Top Leaders" of State-owned Enterprises in Yunyang County, and deepen the "promotion of governance with cases".
Wu Song: Analyzing the problems of the "top leaders" of state-owned enterprises in our county in recent years, the root cause is the lack of supervision and insufficient power supervision and control.
For example, although the land surveying and mapping company is directly managed by the county state-owned asset management service center, due to the small scale and low efficiency of the company, it leads to less attention, less inquiry, and less inspection. One word,” creating a breeding ground for its corruption.
After the Qin Dujun case, our commission put forward suggestions for further strengthening the management of state-owned enterprises in accordance with the system of "one case, one report and one suggestion" for major cases, which were adopted by the county party committee.
At present, our county is comprehensively deepening the reform of state-owned enterprises, and has established 5 group companies including County Nonggao Industrial Group Co., Ltd., absorbed and integrated more than 40 small-scale state-owned enterprises in the county, established and improved various management systems of state-owned enterprises, and realized hierarchical management. .
The county party committee directly manages the team members of the five group companies. By successively assigning and strengthening the secretary of the Disciplinary Committee, the group company is included in the fifteenth inspection of the county party committee. The operation of state-owned enterprises has been continuously formalized, effective supervision has been achieved, and case-based governance has been comprehensively deepened.
Our reporter Liu Yilin