As is well known, defending against crimes committed in the course of official duties is particularly challenging due to specific factors involved. Because such cases concern the inviolability of national interests and the integrity of public officials’ duties, defense attorneys often face significant challenges. According to Article 383 of the Criminal Law, embezzlement involving a “substantial amount”—defined as 200,000 yuan or more—is punishable by imprisonment of three years or more. Recently, attorneys Yan Huainan and Li Mingzhen, through meticulous analysis of the case evidence and a profound interpretation of legal provisions, successfully established that a client accused of embezzlement had voluntarily surrendered. This resulted in a significant defense achievement—a reduced sentence of less than three years—demonstrating the core value of professional criminal defense.
I. Case Focus: Doubts Regarding Three Core Elements of the Offense; Defense Targets the Line Between Guilt and Innocence
In this case, the client was investigated by the Supervisory Commission and referred to the procuratorate for prosecution in connection with a government procurement project for transportation-related consulting services. Following the investigation, the Commission concluded that the client, Ding, as a state official, had exploited his official position to inflate contract prices. He directed government-commissioned project contracts to Company A, which was effectively controlled by Wang (Wang and Ding were business partners), and ultimately transferred the inflated funds to Company B, a firm jointly held by the two. Ding subsequently withdrew the funds, and the proceeds were split equally between them. The Commission ultimately determined that Ding had illegally appropriated state property, with the involved amount reaching the threshold of “a huge sum.”
Upon accepting the retainer, the defense attorney immediately met with the client and reviewed the case files, conducting a comprehensive analysis of the evidence centered on the five essential elements of the crime of embezzlement. Article 382 of the Criminal Law stipulates: “A state official who, by taking advantage of his or her official position, embezzles, steals, defrauds, or otherwise illegally appropriates public property commits the crime of embezzlement.”
According to the above provision, there are four critical factual elements constituting the crime of embezzlement: first, the suspect must be a state official; second, the suspect must have taken advantage of their official position and used means such as embezzlement or theft to illegally appropriate public property; third, public property must have suffered a loss; and fourth, the suspect must have had the subjective intent to illegally appropriate public property. While the defense does not dispute the first element, the evidence on record fails to fully prove the other three elements of the offense. In other words, the prosecution’s evidence does not meet the standard of “clear facts and sufficient, reliable evidence” required for indictment.
II. Targeted Defense: Dismantling the Prosecution’s Case Across Three Dimensions
(1) No Conduct of “Inflating Contract Prices by Exploiting Official Position”
1. Establishment—Positive Argumentation
In the context of the crime of embezzlement, “taking advantage of one’s official position” requires the authority and convenient conditions to supervise, manage, or handle public property. Such authority and convenience must play a direct, decisive, and sole role in causing the public property to ultimately depart from the unit’s control. If there are subsequent stages involving substantive approval or veto power over the property in question, the defendant cannot be deemed to have taken advantage of his official position.
Regarding the core allegation in the indictment that “Ding某 exploited his official position to inflate the contract price,” attorneys Yan Huainan and Li Mingzhen, through a careful analysis of the complete pricing documentation for the project in question, discovered that the contract pricing was not decided solely by the defendant Ding某, but rather followed a standardized process of “reference standards—collective review.” Evidence in the case file, including meeting minutes and records of signatures from multiple parties, fully demonstrates that the contract price was determined through professional review and collective decision-making. The defendant merely fulfilled procedural duties during the pricing process; there were no objective conditions for him to unilaterally manipulate prices by leveraging his official influence, and this completely fails to meet the constitutive requirements of “taking advantage of official position” under the crime of embezzlement.
2. Rebuttal—Dismantling the Evidence Framework
In this case, upon receiving a call from the investigation team, Ding voluntarily went to cooperate with the investigation. Although the defendant initially claimed he merely did not lower the price, he was still recorded in the interrogation transcript as having signed off on “inflated contract prices.” Later, he completely denied this, asserting that he had engaged in no such inflation and did not believe he was suspected of embezzlement. Although the case file contains the defendant’s early confession, this is ultimately a single statement; apart from this, there is no objective documentary evidence—such as audit reports—to prove the existence of inflated contract prices. Furthermore, the investigative authorities took a statement from Wang, who was in business partnership with the suspect. However, Wang has a direct conflict of interest with Ding, and his testimony consists entirely of personal speculations and comments intended to align with Ding’s statements, lacking any objective evidence to corroborate them; therefore, it cannot be used as a basis for the case. The testimony of the other two witnesses is also entirely speculative and inferential: although they did not participate in the process and were not direct participants in the projects, they made speculative statements—based on a lack of understanding of the actual circumstances—that the contract prices for the two projects were likely inflated. According to the rules of evidence in criminal proceedings, such testimony cannot serve as the basis for a conviction.
Therefore, the defense counsel has fully demonstrated, through both affirmative and negative arguments, that Ding never engaged in any conduct involving the use of his official position to inflate contract prices.
(2) The evidence on record is insufficient to prove that public property suffered a loss
1. Pooling Resources to Prove No Loss
There are no mandatory national standards for pricing transportation consulting projects; pricing primarily relies on industry guidelines and market regulation, with a wide range of flexibility. Costs are influenced by factors such as city size, research depth and scope, industry competition, and the contractor’s qualifications and brand reputation. Through a collaborative effort involving the defense attorney, the defendant’s family, and experts in the relevant field, we identified the *Guidelines for Billing Urban Planning and Design Services* (hereinafter referred to as the “Guidelines”) as a reference for project costs in this industry. The “Guidelines” explicitly state: “When calculating planning and design fees in accordance with these Guidelines, an adjustment coefficient of 0.8 to 1.5 may be applied based on factors such as project complexity, regional differences, and the qualification level of the planning and design unit.” In other words, pricing for such projects involves considering multiple factors and then applying an adjustment coefficient within a specified range. Furthermore, beyond these coefficient adjustments, pricing is fundamentally based on regional population.
Specifically, in this case, when the defendant initially proposed the price, they took into account that all projects under the contract were located in a certain district of Beijing, where the complexity and workload far exceeded those of small and medium-sized cities. Furthermore, the planning price factored in the projected annual population growth and, based on the range of adjustments, was just above the minimum threshold, so there was absolutely no inflated pricing. Therefore, the defense counsel, by combining the contract prices on record with the pricing reference factors provided in the “Opinion,” argued from multiple perspectives that there was absolutely no result of public property suffering losses due to inflated prices.
2. Leveraging Expert Input for Comprehensive Argumentation
The defense counsel also submitted expert testimony from relevant fields to comprehensively argue the pricing factors for the transportation projects in question. In addition to the reference standards established in the aforementioned “Opinion,” pricing must also take into account the following factors: 1) Project cost accounting; 2) Market bidding and comparison; 3) City scale and complexity; 4) Planning depth and scope; 5) Contractor’s qualifications and brand reputation.
In short, the core of the defense is as follows: The contract prices for the three transportation planning projects in question are not subject to statutory or national standard regulations, nor is there any other objective evidence to prove that Mr. Ding inflated the contract prices, thereby causing a loss of public property; Furthermore, the prices proposed by Mr. Ding, which were based on relevant industry standards, did not exceed a reasonable range. Therefore, the “inflated” pricing alleged in the indictment does not exist, nor is there any loss of public property; consequently, the evidence on record cannot be deemed to prove that public property has suffered any loss.
(3) No Intent to “Illegally Appropriate State Property”: The existing evidence fully demonstrates that the funds in question in Ding’s case constitute actual costs and profits previously invested by Ding in his business operations; Ding had no intent to illegally appropriate state funds.
It is crucial to note that the crime of embezzlement is a crime of intent, and “the intent to illegally appropriate” is an essential subjective element; without this subjective intent, the crime is not established. Furthermore, a state official’s violation of regulations by operating a business does not equate to a criminal offense. While this case arose precisely because Ding operated a business in violation of regulations, a violation does not constitute a crime. In particular, in this case, all aspects—including the transfer of funds, the signing of contracts, and the determination of amounts—were handled solely by Wang. The defendant, Ding, was unaware of the source of the funds; his sole intention was to recover the actual costs he had invested in the business he had established in violation of regulations. It is simply impossible that he harbored any unlawful intent to embezzle state funds, and thus the elements required for the crime of embezzlement are not met.
1. Identifying Gaps in the Evidence and Requesting Further Investigation
After careful analysis of the evidence by the defense team, it was discovered that Wang, the witness who co-founded the company with Ding, consistently stated in both of his statements that there were still funds in the company’s accounts when the two withdrew from the partnership. Furthermore, there was an equity dividend owed to Ding in an amount identical to the funds in question, and it was planned to transfer this amount to Ding through a contract between Companies A and B. However, the statements made no mention whatsoever of whether the funds were actually delivered to Ding. It cannot be ruled out that the funds in question are the same as the amount mentioned by Witness Wang as being owed to Ding. Therefore, the defense counsel applied to obtain the audit report of the company previously co-founded by the two parties to verify the existence of the aforementioned funds—specifically, whether Ding was entitled to such a payment and whether he had actually contributed capital to the company.
2. Vigorous Defense: Case Returned Twice for Supplementary Investigation
Despite the defense attorney submitting three defense briefs and one application for evidence collection, the prosecution returned the case twice for supplementary investigation. Upon the final submission to the prosecution, a review of the case files revealed that the supplementary materials consisted precisely of the evidence the attorney had requested. After carefully reviewing the supplementary files, the defense attorney determined that while the defendant, Ding, had engaged in irregularities in establishing the business, he had indeed made actual capital contributions, which is fundamentally different from embezzling cash without any investment. Furthermore, the business registration records on file clearly demonstrate that when Ding withdrew from the company, there was indeed a portion of equity to be distributed to him, though it had never been distributed prior to the incident. This crucial evidence precisely illustrates that reasonable doubt cannot be excluded in this case—namely, that the “embezzled funds” alleged by the investigative authorities are in fact the equity to which Ding was entitled!
Based on the above evidence, regarding the determination of “intent to illegally appropriate,” the legal team, through a meticulous analysis of the prosecution’s evidence, argued with sound reasoning and force that the funds in question constituted Mr. Ding’s legitimate entitlement to his own invested principal, rather than the misappropriation of public property. The defense counsel’s clear definition of the nature of the funds directly refuted the existence of subjective intent to commit embezzlement on the part of the defendant.
III. Key Breakthrough: Successfully Securing Recognition of Voluntary Surrender, Achieving a Reduced Sentencing Category
Attorneys Yan Huainan and Li Mingzhen argued forcefully to deconstruct the prosecution’s logic and secure an acquittal for the defendant. As the case reached a critical juncture, the defendant himself decided to plead guilty and accept punishment. This decision was made possible because the defense attorneys’ earlier raising of a series of evidentiary issues and their argument that the evidence on record did not constitute the crime of embezzlement had been taken very seriously by the prosecutor. Although the defense attorneys’ initial request to recognize the client’s voluntary surrender had been rejected, toward the end of the prosecution review process, the prosecutor made a significant concession regarding sentencing. Taking into account the series of evidentiary issues in the case, the prosecutor recognized the client’s voluntary surrender and recommended a sentence of less than three years, within the statutory range.
Through meticulous and thorough defense work, the defense counsel successfully secured a sentence within the range of less than three years’ imprisonment for the client, achieving a major breakthrough from the “benchmark sentence of three years or more” to a “lenient sentence of less than three years,” thereby maximizing the protection of the client’s legitimate rights and interests.
IV. Lessons from the Defense: Professional Expertise, Perseverance, and Attention to Detail Determine Success
The successful defense in this case not only demonstrates the deep professional expertise of attorneys Yan Huainan and Li Mingzhen in the field of defense against official misconduct but also highlights the core methodology of criminal defense: “deconstruction of legal elements + evaluation of evidence + exploration of details + unwavering persistence.” In cases involving official misconduct such as embezzlement and bribery, the prosecution often leverages extensive investigative resources to establish an evidentiary advantage. However, through precise deconstruction of legal elements, in-depth examination of evidentiary details, and flexible application of legal provisions, defense attorneys can still identify breakthroughs in the case.
This spirit of perseverance is not only a matter of responsibility toward the client but also a manifestation of reverence for the law—and embodies the values of “pursuing excellence and living up to the trust placed in us” that King&Capital Law Firm has always upheld. Moving forward to the trial phase, the defense team will continue to maintain a not-guilty plea and strive to protect the client’s legitimate rights and interests to the fullest extent. In the future, our legal team will continue to deepen our expertise in the field of criminal defense, leveraging our professional capabilities to provide effective representation for every client!
Translated with DeepL.com (free version)
