What's going on?, Wu Yi, the producer of Soldier Assault, is suspected of being the subject of the crime of embezzlement | crime of embezzlement | Soldier Assault

Recently, producer Wu Yi, who participated in film and television dramas such as "Soldier Assault" and "My Regiment Leader My Regiment", was held in court in Dongyang City, Zhejiang Province on suspicion of "embezzlement of duty".

During the nearly five and a half hour trial, two lawyers representing Wu Yi, He Hongchao and Cheng Xuewei, partners of Beijing Deloitte Law Firm, introduced in an interview with China News Service Guoshi Direct that the focus of the dispute between the prosecutor and the defendant Wu Yi's lawyer in the case was directly related to Wu Yi's "guilt or non guilt".

What is the crime of "embezzlement of position"? Why is Wu Yi suspected of embezzlement of duty?

Why is Wu Yi suspected of embezzlement of duty?

According to a statement released by Zhejiang Film Industry, the legal representative of its subsidiary Tianyi Film and Television, Wu Yi, has been criminally investigated by the public security organs on suspicion of embezzlement. On February 28, 2022, Wu Yi was approved for arrest by the People's Procuratorate of Dongyang City.

According to the time limit stipulated in the Criminal Procedure Law of the People's Republic of China, it takes approximately 5 months from the approval of arrest to the trial. However, it has been 16 months since Wu Yi's arrest was approved and the trial began recently, indicating the complexity of this case.

What is the crime of embezzlement of duty that Wu Yi is suspected of constituting? Why is it so complicated?

According to Article 271 of the Criminal Law of the People's Republic of China, employees of companies, enterprises, or other units who, taking advantage of their positions, illegally occupy the property of their own units shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined if the amount involved is relatively large; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is particularly huge, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined.

From the perspective of the criminal subject, it must be the illegal occupation behavior of non-state employees of companies, enterprises, or other units during the exercise of their duties. If personnel engaged in official duties in state-owned companies, enterprises, or other state-owned units, as well as personnel appointed by state-owned companies, enterprises, or other state-owned units to engage in official duties in non-state-owned companies, enterprises, or other units, engage in embezzlement behavior, they are generally punished with the crime of embezzlement.

From the perspective of the elements that constitute a crime, there are two points: first, utilizing the convenience of one's position; The second is to illegally occupy the property of others in our unit as our own.

According to the "Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs" jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security on April 6, 2022, the filing standard for crimes of embezzlement is a sum of more than 30000 yuan and a sentence of less than three years; If the amount is over 1 million yuan, it is considered a huge amount and the sentence is three to ten years.

Does "not benefiting" count as encroachment?

All types of embezzlement crimes, including the crime of embezzlement, require the criminal subject to have a subjective purpose of "illegal gain" and an objective act of embezzlement.

Zhang Ming, a partner and lawyer at Beijing Jingshi Law Firm, stated in an interview with China News Agency's Guoshi Express that the pursuit of criminal responsibility must adhere to the principle of subjective and objective unity, that is, the criminal subject must have subjective criminal intent or negligence, objective criminal behavior, and some crimes also require objective damage results. Generally, only when both subjective and objective conditions are met and mutually unified can a conviction be made.

As for the crime of embezzlement, it must be intentional subjectively, but how to prove the subjective state of the criminal subject when committing the crime is a difficult point in judicial practice.

According to He Hongchao, Wu Yi fundamentally lacks the basic conditions for intentionally occupying the property of Zhejiang Tianyi Film and Television Co., Ltd. Because Wu Yi, as the legal representative of Tianyi Film and Television, was previously the founder and actual controller of the company. At the end of 2017, Tianyi Film and Television was acquired as a subsidiary by the listed company Zhejiang Culture Film Industry through equity transfer, and Wu Yi himself actually formed a "betting" relationship with Zhejiang Culture Film Industry during the acquisition process.

If Wu Yi fails to achieve the agreed profit target, he will compensate Zhejiang Film Industry at a rate of 2.3 times the agreed amount. This means that if Wu Yi embezzles 1 million yuan from Tianyi Film and Television, he will have to compensate 2.3 million yuan, so Wu Yi has no subjective intention or criminal motive for the embezzlement.

At the same time, Cheng Xuewei also believes that one of the necessary elements for constituting all embezzlement crimes, including official embezzlement, is the property of "others", that is, taking one's own money cannot constitute a crime, and Wu Yi is accused of "embezzlement" of Tianyi Film and Television's funds, which is much lower than the amount Tianyi Film and Television owes to Wu Yi.

Which is more "debt" or "embezzlement"?

"Firstly, the indictment accuses Wu Yi of embezzlement of the total amount of 27048567.68 yuan from Tianyi Film and Television, and according to incomplete statistics, Tianyi Film and Television actually owes Wu Yi 49899178.45 yuan in the form of loan guarantees, loans, and producer fees." Cheng Xuewei stated that Wu Yi's "loss" was "eating" the confusion between his own property and the company's property during the operation process. Even so, it is only a lack of standardized operation and management, which falls within the scope of legal civil adjustment and does not constitute crimes such as embezzlement.

For example, when Tianyi Film and Television was facing financial difficulties, Wu Yi used his own name to raise funds at high interest rates and then lent them to the company at low interest rates; Also, using one's own money to promote the company's film and television dramas; When he didn't have the money to lend to the company, he used his property as collateral to finance 20 million yuan for the company. The company couldn't repay the loan, and Wu Yi's property was seized and executed; The remuneration that the company should pay to Wu Yi as the chief producer, which Wu Yi received or did not receive in the form of outstanding loans, has been calculated to far exceed the amount of funds accused of "embezzlement".

Does it constitute the crime of embezzlement if the company owes itself money and takes advantage of its position to retrieve a portion of it?

Zhang Ming believes that although the company owes itself money, as a creditor, I have the right to demand that the company repay the debt, but I must use legal methods and complete legal procedures to determine whether it constitutes a crime. The specific analysis should be based on the specific circumstances of the case, and cannot be generalized.

Wu Yi still needs further recognition and judgment from the judicial authorities based on the facts and evidence they have. Wu Yi's previous film and television works, such as "Winter and the Lion," may also be "abandoned" due to his arrest.