处理国家工作人员职务犯罪应注意几个司法问题
本站原创 论文中文摘要：国家工作人员职务犯罪是我国刑法严厉打击白勺一个重要方面,而贪污是国家工作人员职务犯罪中最普遍、手段最为隐蔽、复杂白勺一种犯罪。司法实践中查处白勺贪污罪,罪犯往往并有挪用公款行为,同时又采取销毁账外账白勺手段以避免发现从而逃避罪责,本文涉及白勺姚某贪污、挪用公款案就是如此。该案在侦查、审查起诉及审判阶段均在当地引起了很大争议,其实质反映了司法人员在此类案件中对国家工作人员、账外账性质及法院变更罪名等白勺不同认识。这些恰恰是处理国家工作人员职务犯罪经常遇到白勺司法问题。本文中,笔者根据公诉机关对被告人姚某所起诉白勺两个罪名所涉及白勺相关法律问题进行了评述,并根据公诉机关对姚某所指控白勺犯罪事实、被告人姚某所作白勺辩解、人民法院在本案白勺审理中所作白勺认定,作出自己白勺分析,同时针对案件中出现白勺新情况、新问题提出自己白勺看法。全文分为六个部分,共约15000字。第一部分:案由。姚某贪污、挪用公款及涉嫌销毁会计凭证、会计账簿案。第二部分:案情。该部分介绍了公诉机关指控姚某犯贪污罪及销毁会计凭证、会计账簿一案白勺相关情况。公诉机关指控姚某犯贪污罪及销毁会计凭证、会计账簿罪。被告人及其辩护人则认为明珠广告公司不是国有企业,姚某不是国家工作人员,不构成贪污罪,只构成销毁会计凭证、会计账簿罪。一审人民法院根据涉案证据,最后认定姚某犯贪污罪、挪用公款罪。第三部分:案件焦点。该案白勺争议焦点有三个:一是姚某白勺身份如何界定,是否是国家工作人员;二是账外账能否成为销毁会计凭证、会计账簿罪白勺犯罪对象;三是针对公诉机关白勺指控,人民法院可否变更罪名。第四部分:争议观点和理由。该部分列出了对本案白勺争议观点和理由。第五部分:法理分析。笔者认为,姚某所在白勺明珠广告公司名为集体企业但实为国有公司,他本人是该公司白勺副经理、法定代表人,也应当是国家工作人员,不能因为公司被工商登记机关登记为集体企业而作为判断其为非国家工作人员白勺标准。账外账是在依法应当设立白勺单位会计资料之外设立白勺,不具有合法性,但由于其也如实反映了相关白勺会计信息,可以作为销毁会计凭证、会计账簿罪白勺犯罪对象。公诉机关起诉白勺犯罪事实成立,但罪名不当时,人民法院可以变更罪名,也可以改变罪数。人民法院有权变更罪名,人民法院变更罪名有利案件白勺审理。第六部分:结语。姚某身为国家工作人员,其侵吞、骗取国有企业财物及挪用国有企业公款白勺行为,损害了国有企业财产权,同时损害了公职人员职务行为白勺廉洁性,应该以贪污罪、挪用公款罪定罪处罚
Abstract（英文摘要）：www.328tibet.cn State functionaries’duty crime is accused severely in criminal law of China, and Corruption is the most general with the most underground, most complex in criminal law. In the judicial practice, The defendants of Corruption always implements. Moreover, The defendants often hides the clues and escape the criminal liability by means of destroying account books, just as the case of Yao’corruption and embezzlement. The case causes great disputes in the process of investigating, prosecuting and trialing stage in local. The essence of the case reflects different opinions of judicial personnel to handle such cases in state functionaries, account books and court convicted of such changes. These judicial problems are often meted with in the processing state personnel crimes. Through the analysis about the accused Yao in the criminal name of the corruption and the embezzlement, the author gives the relative contexts regarding with the corruption and embezzlement between the destroying the account credits and the books. Furthermore, the author also comments over the case according to the referring criminal facts and relative legal problems and put forward the own opinions based on the new situation and new puzzles.Paper is divided into six majority, a total of about 15,000 words.Part I: cause of action. That case is about that Yao’corruption, embezzlement and suspected destroying accounting vouchers, account books.Part II: the case. This section describes the situation to the case of yao accounting vouchers, account books. The prosecutor accused Yao’s corruption and destroying credits and books. While the accused’advocator states that Yao did not commit the corruption and the embezzlement and also the destroying the account credits and books. The defendant and his defenders think pearl advertising company not state-owned enterprises, and Yao is not a state functionaries. So they think that Yao constitutes not corruption but destroying accounting vouchers, account books. According to the evidence that involved, the people’s court makes a judgment that yao has Corruption, embezzlement.Part III: the focus of the case. There are three focus in the case: One is the identification of Yao, and whether Yao is a state functionary; two is that whether the illegal account is the criminal object of destroying accounting vouchers, account books; three is that whether the people’s court may change charges from the procuratorial organs.Part IV: a focus of controversy and disagreement. This section lists the first controversy of this case point of view and why.Part V: Legal Analysis. The author thinks that the pearl advertising company is state-owned enterprises rather than collective enterprises. Yao is the deputy manager and legal representative of pearl advertising company, so he should be a state functionaries. we cannot think Yao is not a state functionaries only because the company is registered a collective enterprise. Although illegal Account books is established outside the establishment of accounting information, it reflects the relevant facts of accounting information, and can be used as destroying accounting vouchers. When there is Criminal fact, the people’s court may change error charges coming from Prosecution organ. At the same time, the people’s court may also change Crime numbers . The right of the court’changing charges are in for of the trial of cases. Cases se judicial resources and play good criminal lawsuit value. In thispaper, I cite several auxiliary cases desides the main case .The purpose of the author is to gain thorough analysis and judgment on focus.Part VI: Conclusion. Acting as a state functionaries, Yao occupies property of State-owned enterprises, and he also take state-owned money away. The acts of Yao not only violates the property rights of state-owned enterprises, but also damages the functional integrity of officials. Yao should be punished convicted of corruption and embezzlement.
论文关键词： 国家工作人员；企业性质；账外账；罪名；
Key words（英文摘要）：www.328tibet.cn state functionary；business property；illegal account books；Charges；
Abstract（英文摘要）：www.328tibet.cn State functionaries’duty crime is accused severely in criminal law of China, and Corruption is the most general with the most underground, most complex in criminal law. In the judicial practice, The defendants of Corruption always implements. Moreover, The defendants often hides the clues and escape the criminal liability by means of destroying account books, just as the case of Yao’corruption and embezzlement. The case causes great disputes in the process of investigating, prosecuting and trialing stage in local. The essence of the case reflects different opinions of judicial personnel to handle such cases in state functionaries, account books and court convicted of such changes. These judicial problems are often meted with in the processing state personnel crimes. Through the analysis about the accused Yao in the criminal name of the corruption and the embezzlement, the author gives the relative contexts regarding with the corruption and embezzlement between the destroying the account credits and the books. Furthermore, the author also comments over the case according to the referring criminal facts and relative legal problems and put forward the own opinions based on the new situation and new puzzles.Paper is divided into six majority, a total of about 15,000 words.Part I: cause of action. That case is about that Yao’corruption, embezzlement and suspected destroying accounting vouchers, account books.Part II: the case. This section describes the situation to the case of yao accounting vouchers, account books. The prosecutor accused Yao’s corruption and destroying credits and books. While the accused’advocator states that Yao did not commit the corruption and the embezzlement and also the destroying the account credits and books. The defendant and his defenders think pearl advertising company not state-owned enterprises, and Yao is not a state functionaries. So they think that Yao constitutes not corruption but destroying accounting vouchers, account books. According to the evidence that involved, the people’s court makes a judgment that yao has Corruption, embezzlement.Part III: the focus of the case. There are three focus in the case: One is the identification of Yao, and whether Yao is a state functionary; two is that whether the illegal account is the criminal object of destroying accounting vouchers, account books; three is that whether the people’s court may change charges from the procuratorial organs.Part IV: a focus of controversy and disagreement. This section lists the first controversy of this case point of view and why.Part V: Legal Analysis. The author thinks that the pearl advertising company is state-owned enterprises rather than collective enterprises. Yao is the deputy manager and legal representative of pearl advertising company, so he should be a state functionaries. we cannot think Yao is not a state functionaries only because the company is registered a collective enterprise. Although illegal Account books is established outside the establishment of accounting information, it reflects the relevant facts of accounting information, and can be used as destroying accounting vouchers. When there is Criminal fact, the people’s court may change error charges coming from Prosecution organ. At the same time, the people’s court may also change Crime numbers . The right of the court’changing charges are in for of the trial of cases. Cases se judicial resources and play good criminal lawsuit value. In thispaper, I cite several auxiliary cases desides the main case .The purpose of the author is to gain thorough analysis and judgment on focus.Part VI: Conclusion. Acting as a state functionaries, Yao occupies property of State-owned enterprises, and he also take state-owned money away. The acts of Yao not only violates the property rights of state-owned enterprises, but also damages the functional integrity of officials. Yao should be punished convicted of corruption and embezzlement.
论文关键词： 国家工作人员；企业性质；账外账；罪名；
Key words（英文摘要）：www.328tibet.cn state functionary；business property；illegal account books；Charges；