Recently, Mr Zhang Yanfeng, a senior partner of King&Capital Law Firm, handled the case of a suspect in a case of occupational misappropriation and was successfully granted bail pending trial at the stage of review and prosecution, and was able to be reunited with his family before the Spring Festival, which is the most important traditional festival of the Chinese nation.

Basic facts of the case

The case involves many people, Zhang Yanfeng's client is a company executive. When the company borrowed from the bank, the bank staff conspired with another executive of the company to cheat the company of more than 10 million yuan in the name of charging a fee for taking up the quota for the loan, and several suspects embezzled the money. Zhang lawyer's client obtained more than 3 million yuan, but the next year will be returned to the original way to the original hand over the stolen money to another executive.

The public security authorities opened a case for fraud and detained and arrested several suspects.

Case handling

After the detention of the client's family was introduced by a friend to appoint lawyer Zhang as a defender. Lawyer Zhang met with the client at the first time, and then immediately communicated with the public security organ and submitted the Application for Release on Bail Pending Trial. Main reasons: Firstly, this case does not constitute a fraud offence, because firstly, the suspect made use of the convenience of his position when he swindled the property in question; secondly, the property he swindled did not belong to the counterparty to the transaction, but was owned by his own organisation. Therefore, if it constitutes a crime, it can only be identified as the crime of misappropriation of duties (Note: according to the judicial interpretation of the provisions of more than 3 million yuan, if it constitutes the crime of fraud sentencing in more than 10 years, while the crime of misappropriation of duties sentencing for 3-10 years). Secondly, the suspect has returned the misappropriated money before the crime (since it was not returned to the company, but to another suspect, and it is doubtful whether the other suspect admitted it). In addition, there were other reasons why the suspect could be released on bail pending trial.

While communicating with the public security authorities, Mr Zhang also actively communicated with the victim's organisation. The victim's organisation was reasonable, and issued a Letter of Criminal Understanding, and submitted an Application for Release on Bail Pending Trial to the public security authorities on the grounds that the suspect was a hard-working and law-abiding person, and that the suspect was needed to deal with the relevant business of the organisation.

However, in the end, the public security organs did not agree to release on bail pending trial, and still reported to the procuratorate for arrest for fraud.

Immediately after the arrest, the lawyer submitted an Application for Non-Approval of Arrest to the procuratorial organ, and emphasised again that the case did not constitute the crime of fraud. The procuratorial authorities did not accept the lawyer's opinion and approved the arrest, but changed the offence to misappropriation of functions.

Previously, due to the lawyer did not read the file, do not understand the specific circumstances of the case, the case transferred to the procuratorial organs, the lawyer seized the time to read the file, and then actively communicate with the prosecutor, and submit the ‘necessity of detention review application’, and many times with the public prosecutor telephone communication. The public prosecutor is very high quality, civilised and polite, communication is very smooth, it said the case involves more people, the amount is large, and some facts have not been investigated, the need for additional investigation, so did not approve the bail pending trial.

After two withdrawals from the investigation, the final approval of bail pending trial.

Main reasons for applying for bail

1. The suspect had returned the stolen money in full before the case was filed, and the other suspect recognised it. Returning the stolen money before the case is a very important mitigating circumstance, and may even reduce the punishment.

2. The suspect is an accessory. The case was entirely planned and implemented by another executive and the bank leader, and Zhang's client had no knowledge of the nature of the money (job misappropriation or bribery), the other executive's improper dealings with the bank leader, or the cash through the third-party company, etc. Moreover, he did not have the right to decide on the loan issue, and was only responsible for reporting the case, which he reported according to the procedure after conducting a formal review and considering the cost lower than that of the other banks. .

3. The suspect confessed truthfully during the first interrogation by the public security authorities and expressed his guilty plea and remorse.

4. The victim's organisation has expressed understanding and applied for his release on bail pending trial.

5. The suspect's personal danger is small. Because of his usual compliance with the law, without any previous convictions, and this violation of the law is just a thought, passive acceptance of ill-gotten gains, not involved in other acts and do not know, after the bail pending trial will not violate the law, in line with the provisions of Article 67 of the Criminal Procedure Law: ‘(a) may be sentenced to control, detention, or independently apply the additional sentence; (b) may be sentenced to a term of imprisonment or more than the penalty, and the suspect's personal danger is small. sentenced to fixed-term imprisonment or more, the adoption of bail pending trial does not lead to social danger ......’

6. The facts of the case have been basically investigated and evidence has been collected and fixed.

7. The suspect meets the conditions for a possible sentence of three years and the application of probation. According to the Criminal Law and relevant judicial interpretations, the suspect may be sentenced to three years of imprisonment, coupled with a number of mitigating and extenuating circumstances such as the return of stolen goods before the crime, being an accessory to the crime, and the understanding of the victim's organisation, there is a greater likelihood that a suspended sentence will be imposed.

8. The suspect has a proper job and a happy family, so the change of coercive measures will not destroy or falsify evidence, retaliate against victims and informants, obstruct testimony, and escape.

9. The release on bail pending trial is in line with the criminal policy of ‘fewer arrests, more cautious prosecution and more cautious detention’.