Application of limitation of prosecution in the crime of misappropriation of public funds

Original title: Application of limitation of prosecution in the crime of embezzlement of public funds

[case]

Jiang was originally a cashier in the finance office of a town in C County. From February 1 to October 14, 2009, Jiang took advantage of his position to manage the expenses of several bank accounts in the town and transferred 1.6 million yuan of public funds to his personal bank account for stock trading. In December 2012, Jiang took out 1.6 million yuan from his personal account and deposited it in the town financial account. On May 10, 2019, the county supervisory Committee conducted an initial nuclear test on Jiang’s clues about the problem; On June 1, he filed an investigation on his alleged misappropriation of public funds; On October 20, the county supervisory Committee dismissed Jiang from public office, and on the same day transferred him to the procuratorate for review and prosecution.

[Disagreement]

The first opinion: Jiang’s crime of misappropriating public funds exceeded the limitation of prosecution during the investigation and could not be prosecuted again.

The second opinion: Jiang’s crime of misappropriating public funds has not exceeded the limitation of prosecution since it was put on file for investigation, and can be prosecuted.

[Comment]

(a) the basic applicable rules of the limitation of prosecution

If a crime is committed and settled in a short time, there is almost no dispute about the limitation of prosecution, so that some people mistakenly think that the limitation of prosecution does not apply to these crimes. If there are many years between the date of the establishment of the crime and the date of the suspect’s arrival, there will often be disputes over the limitation of prosecution; If the statutory penalty is amended in the meantime, the application of the new law or the old law will have different legal consequences, and the dispute over the application of the law will be superimposed.

There are two key points in the judicial application of the limitation of prosecution. One is to determine the starting point of the limitation of prosecution for crimes, and sometimes it is necessary to consider the interruption of the limitation of prosecution; The second is to determine the corresponding limitation period of prosecution. The specific rule is that as long as the criminal case is filed (or the supervisory organ files an investigation and the court accepts private prosecution, the following is omitted), it can be prosecuted within the limitation period (before the natural expiration), and it will not exceed the limitation period; If the date of filing a criminal case is later than the expiration date of the prosecution period, it is beyond the limitation of prosecution and cannot be prosecuted, with the exception of cases approved by the Supreme People’s Procuratorate and stipulated in Article 89 of the Criminal Law. So it can be simplified, simple and easy, and can be applied to all crimes.

(two) the general steps of the limitation of prosecution applied to the crime of misappropriation of public funds.

Step 1: Find the corresponding crime constitution.

If there is only one constitution of a crime, there is no need to find the corresponding constitution. In 1997, Article 384 of the Criminal Law stipulated the crime of misappropriating public funds, which included three crimes: First, state functionaries took advantage of their positions to misappropriate public funds for personal use and engage in illegal activities-they did not ask for a large amount and failed to pay it back for more than three months; Second, state functionaries take advantage of their positions to misappropriate a large amount of public funds for profit-making activities-they are not required to pay them back for more than three months; Third, the national staff took advantage of their positions to misappropriate a large amount of public funds, which was not paid back for more than three months. Because there is no combined punishment for several crimes of the same kind, it is usually necessary to accumulate the amount of crimes. In 1998, Article 2, Paragraph 1, Item 2 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds stipulates that "Misappropriation of public funds for deposit in banks, fund-raising, purchase of stocks, treasury bonds, etc. belongs to profit-making activities of misappropriation of public funds". Based on the logic of putting the light on the light, the misappropriation of public funds for stock trading is of course a profit-making activity. This view is not controversial and supported by many judicial decisions. Jiang’s behavior conforms to the second crime constitution and does not require more than three months.

Among the first two kinds of crime constitution, the day when the crime is established is the day when the embezzlement of public funds is completed, and it is also the starting point of the limitation of prosecution. In the third type of crime, the date of establishment of the crime is the day after the expiration of the third month after the implementation of misappropriation of public funds, and the starting point of the limitation of prosecution is the same; Assuming that the day of A month and B is the date of the completion of embezzlement, the date of the expiration of the third month is A+March b-1, and A+March B is the date of the limitation of prosecution.

Step 2: Judge whether the crime continues or not, and determine the starting point of the limitation of prosecution.

The crime of misappropriating public funds is a state crime, not a continuation crime. If the perpetrator misappropriates public funds for many times, it means that the criminal behavior has a continuous state. According to the first paragraph of Article 89 of the Criminal Law and the 2003 Reply of the Supreme People’s Court on How to Calculate the Prosecution Period for the Crime of Embezzling Public Funds, the prosecution period should be calculated from the date when the criminal behavior ends (that is, the date when the last misappropriation is completed) or the date when the crime is established (when the constitution of the third type of crime and the single misappropriation of public funds do not meet the standards for filing and prosecution, but the accumulated amount does).

Jiang "successively transferred 1.6 million yuan of public funds to his personal bank account", indicating that his misappropriation behavior has been repeated and continuous, and he is a serial offender of misappropriation of public funds. The last time Jiang embezzled public funds was October 14, 2009, and the continuous state and criminal behavior ended on this day, not on January 13, 2010. From October 14, 2009 to December 2012, Jiang did not return the misappropriated public funds, but he was not a continued offender. One day in December, 2012, is the date of Jiang’s repayment and the end of the illegal state, but it is not the starting point of the limitation of prosecution. Therefore, the limitation of prosecution for Jiang’s crime of misappropriating public funds starts from the date when the last misappropriation was completed, that is, October 14, 2009, not from other dates.

Step 3: Determine the limitation period of prosecution, and sometimes choose the applicable law.

When analyzing a case, we should determine the corresponding limitation period of prosecution according to the facts, nature, amount, circumstances and whether to return it. There are three statutory penalties for the crime of misappropriating public funds: one is "fixed-term imprisonment of not more than five years or criminal detention", and the corresponding statutory maximum penalty is fixed-term imprisonment of five years. According to Article 99 of the Criminal Law, the five years here include the number, and according to Article 87, paragraph 2, of the Criminal Law, the corresponding limitation period for prosecution is ten years-this is the mainstream view. The second is "fixed-term imprisonment of more than five years", which should be understood as "fixed-term imprisonment of more than five years and less than fifteen years" in combination with the general provisions. The corresponding statutory maximum penalty is fixed-term imprisonment of fifteen years, and the corresponding limitation period for prosecution is fifteen years. The third is "fixed-term imprisonment of more than 10 years or life imprisonment", the corresponding legal maximum penalty is life imprisonment, and the corresponding limitation period for prosecution is 20 years.

Jiang’s criminal behavior occurred in 2009, and the day when the county supervisory Committee filed an investigation on his alleged misappropriation of public funds was June 1, 2019. The legal provisions of 2009 and 2019 may be applicable. According to the law at the time of committing the crime, Article 3 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds in 1998 applies. The starting point of the "huge amount" is the misappropriation of public funds of 150,000 yuan to 200,000 yuan, and Jiang’s misappropriation of public funds of 1.6 million yuan is obviously a "huge amount". According to Article 5 of the explanation, Jiang had returned the misappropriated public funds before the incident, which did not belong to "the amount of misappropriated public funds was huge and would not be returned", and the corresponding legal punishment was not "fixed-term imprisonment of more than 10 years or life imprisonment"; Because it belongs to "serious circumstances", the corresponding statutory maximum penalty is "fixed-term imprisonment of more than five years", that is, "fixed-term imprisonment of more than five years and less than fifteen years", and the limitation period for prosecution is fifteen years. If the case is based on the law at the time of investigation, the provisions of Article 6 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery in 2016 shall apply. Jiang embezzled 1.6 million yuan of public funds for profit-making activities, less than 5 million yuan, so it is not a "huge amount", less than 2 million yuan, so it is not a "serious case", but the basic crime of embezzlement, and the corresponding statutory punishment is "fixed-term imprisonment of not more than five years or criminal detention". The statutory maximum punishment is five years in prison and the limitation period for prosecution is ten years.

Comparing the two, it can be seen that the judicial interpretation at the time of filing is more beneficial to Jiang. Based on the principle of being lenient with the old, we should apply the law at the time of filing to determine the limitation period of prosecution for Jiang’s crime of misappropriating public funds, that is, ten years.

Step 4: Judge whether the date of filing a criminal case is within the limitation period of prosecution.

According to the reasoning of "filing a case" adopted in the 2016 Reply of the Supreme People’s Court on the case of the defendant Lin Shaoqin asking for instructions on accepting bribes, it can be known that if the date of filing a criminal case does not exceed the limitation period of prosecution, it can be prosecuted, and it is not necessary to complete all prosecution activities because of the later revision of the statutory penalty. Considering the characteristics of the supervisory organs in handling duty crime cases, the investigation of filing a case is the closest to that of criminal filing, so it should be considered that if the date of filing an investigation of duty crime is within the limitation period of prosecution, it does not exceed the limitation period of prosecution. The end point of the limitation of prosecution for duty crimes is the date of investigation, which is more reasonable than the date of initial verification, the date of public prosecution or the date of trial. If it is clear that the end point of the limitation of prosecution is the date of criminal filing (or filing an investigation and the court accepting private prosecution), it is not a necessary step to determine the end point of the limitation of prosecution.

The limitation period of prosecution for Jiang’s crime is ten years, which means that as long as the case is investigated before October 13, 2019, that is, within the limitation period of prosecution, it can be prosecuted. The date when the County Supervisory Committee filed an investigation on Jiang’s alleged misappropriation of public funds was June 1, 2019. Obviously, it can be prosecuted within the limitation period of prosecution, and the limitation period of prosecution will not change for other reasons after filing the case.

To sum up, if the corresponding statutory punishment is modified after the crime is filed and the limitation period of prosecution changes, the applicable law should be chosen according to the principle of old and light punishment to determine the limitation period of prosecution. Jiang has repeatedly misappropriated public funds of 1.6 million yuan for profit-making activities. He is a serial offender, and the amount is relatively large. It took more than three months to return. He is the basic offender of the crime of misappropriation of public funds. The corresponding statutory maximum penalty is five years in prison and the limitation period for prosecution is ten years. On the date of filing an investigation, within the limitation period of prosecution, it will not exceed the limitation period of prosecution and can be prosecuted. I think the second opinion is correct.

[This article is supported by the 2022 Scientific Research Fund of the National Prosecutor’s College (No.:GJY 2022 D 35); The Phased Achievements of the 2021 School-level Youth Project of Southwest University of Political Science and Law (No.2021XZNDQN-03). 〕

(Author: Southwest University of Political Science and Law School) (Wang Denghui)

(People’s Court News)