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| Notice by the Supreme People's Procuratorate of Issuing the Model Cases of Embezzlement in the Private Sector | | 最高人民检察院关于印发职务侵占典型案例的通知 |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| For the purposes of fully implementing Xi Jinping Thought on the Rule of Law, maximizing the demonstration and leading role of model cases, and further strengthening the fight against internal corruption in private enterprises, the Supreme People's Procuratorate has selected six cases including People v. S Insurance Company business director Xu B, underground insurance criminal gang members Xu A and Zhu A, and five Others (embezzlement and infringement of citizens' personal information) as model cases of embezzlement, which are hereby issued for your reference when handling cases. | | 为全面贯彻习近平法治思想，充分发挥典型案例示范引领作用，进一步加大对民营企业内部腐败的打击力度，最高人民检察院选编S保险公司业务总监徐某乙、“保险黑产”犯罪团伙徐某甲、朱某某等7人职务侵占、侵犯公民个人信息案等6件案例作为职务侵占典型案例，现印发你们，供各地办案时参考借鉴。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| April 19, 2022 | | 2022年4月19日 |
| Model Cases Involving the Crime of Embezzlement in Private Enterprises Handled by Procuratorial Authorities according to the Law | | 检察机关依法办理民营企业职务侵占犯罪典型案例 |
| People v. S Insurance Company business director Xu B, underground insurance criminal gang members Xu A and Zhu A, and five Others (embezzlement and infringement of citizens' personal information) | | S保险公司业务总监徐某乙、“保险黑产”犯罪团伙徐某甲、朱某某等7人职务侵占、侵犯公民个人信息案 |
| [Keywords] | | 【关键词】 |
| embezzlement, “order pending”, “underground insurance industrial chain”, legal supervision, civil public interest action incidental to a criminal case, governance of litigation sources | | 职务侵占 “挂单” “保险黑产” 法律监督 刑事附带民事公益诉讼 诉源治理 |
| [Key Points] | | 【要旨】 |
| The employees of an insurance company collude with outsiders to establish an underground industrial chain, defrauding the company of money in the form of “pending order", which constitutes the crime of embezzlement. For cases of multi-regional and multi-level gang crime, the procuratorial authority should conduct a thorough investigation of omitted offenders and crimes through a combination of case opening supervision, pursuit and prosecution. A civil public interest action incidental to a criminal case should be filed according to the law against any violator who infringes on many citizens' personal information in a criminal case. For the problems of social governance found in handling cases, industry governance may be effectively promoted through enterprise compliance, procuratorial recommendations, and legal publicity, so as to improve the law-based business environment. | | 保险公司员工内外勾结形成黑色产业链，以“挂单”形式骗取公司钱款，构成职务侵占罪。对于多区域多层级团伙犯罪案件，检察机关要综合运用立案监督、追捕追诉等方式，深挖彻查漏犯漏罪。对于在刑事案件中侵犯众多公民个人信息的违法行为人依法提起刑事附带民事公益诉讼。对于在办案中发现的社会治理问题，可以通过企业合规、检察建议、普法宣传等方式，有效推动行业治理，优化法治营商环境。 |
| I. Basic Facts | | 一、基本案情 |
| The Shanghai Branch of the China S Insurance Co., Ltd. (hereinafter referred to as “S Company”) is one of the leading enterprises in Shanghai's insurance industry, and Xu B (with partial name withheld) works as Director of the Modern Division for S Company, while Zhang A (with partial name withheld), Gu A (with partial name withheld) and seven others are the business directors of Modern Division of S Company. | | 中国S保险股份有限公司上海分公司（以下简称S公司）系上海保险行业龙头企业之一，徐某乙系S公司现代部业务总监，张某某、顾某某等9人系S公司现代部业务主任。 |
| Xu A and Zhu A organized a criminal gang engaging in an "underground insurance industrial chain". From April to June, 2020, Xu A conspired with Xu B, and Xu B incited Zhang A, Gu A and others to collect and control the account numbers of the newly recruited insurance salesmen of S Company. Xu A and Zhu A used more than 10,000 items of insurance policy information purchased from others, including policy number, date of application, insurance type, policy amount, customer name, ID number, home address and telephone number, to contact the applicants in the name of the employees of S Company to trick the applicants into surrendering the original insurance policies before buying new policies under the guise of "product upgrade" and "full surrender of the original policies". They recorded the new policies under the accounts of the newly recruited insurance salesmen, and obtained from S Company more than 1.848 million yuan worth of additional rewards for new recruit training allowance and rewards for recruitment. At the same time, it was also ascertained that two gangs (handled separately), including Liu A (with partial name withheld) and Xu A Bing (with partial name withheld), committed in the same way the criminal activities of engaging in the underground insurance industrial chain. Altogether, the aforementioned three gangs defrauded S Company of more than 8 million yuan worth of allowance for new recruits. Furthermore, the criminal activities of the underground insurance industrial chain also led to the surrender of a large number of insurance policies of S Company and complaints from applicants, which seriously affected the normal business activities. As many as more than 3000 insurance policies were directly involved in these criminal activities, with the amount of insurance policies reaching more than 10 million yuan, which infringed the policy rights and interests of some applicants. | | 徐某甲、朱某某组织“保险黑产”犯罪团伙，2020年4月至6月，徐某甲与徐某乙合谋，由徐某乙指使张某某、顾某某等人收集并控制S公司新进保险业务员账号。徐某甲、朱某某利用从他人处购买的包含保单号、投保日期、保险险种、保单金额、客户姓名、身份证号码、家庭住址、电话号码等内容的1万余条保单信息，冒充S公司员工联系投保人，以“产品升级”“原保单全额退保”等为名，诱骗投保人将原保单退保后购买新保单，将新保单“挂单”在新进保险业务员账号下，获取S公司支付给新进业务员的新人训练津贴、增员奖等额外奖励184.8万余元。同时，还查明刘某某、徐某丙等2个团伙（另案处理），以相同手段进行“保险黑产”犯罪活动，上述3个团伙共骗取S公司新进业务人员津贴800余万元。此外，“保险黑产”犯罪活动还造成S公司大量保单退保、投保人投诉，严重影响正常经营活动，直接涉及保单3000余张、保单金额达1000余万元，使部分投保人保单权益遭受侵害。 |
| From June to December 2021, the Jing'an District People's Procuratorate of Shanghai Municipality instituted a public prosecution against 44 defendants, including Xu A, Zhu A, Liu A and Xu A Bing, for the crime of embezzlement and infringement of citizens' personal information. From September to December of the same year, the Jing'an District People's Court of Shanghai Municipality successively gave Xu A, Zhu A, Xu B, and other defendants a sentence ranging from four months' limited incarceration to five years' imprisonment for the crime of embezzlement and infringement of citizens' personal information, and imposed corresponding fines. And the Jing'an District People's Court of Shanghai Municipality sentenced the defendant Xu B to two years and six months in prison for the crime of embezzlement and fined RMB90, 000. The defendant Xu A was sentenced to five years' imprisonment and fined 210,000 yuan for the crime of embezzlement and infringement of citizens' personal information, and the defendant Zhu A was sentenced to four years and four months in prison and fined 200,000 yuan. | | 上海市静安区人民检察院于2021年6月至12月，以职务侵占罪、侵犯公民个人信息罪，分案对徐某甲、朱某某、刘某某、徐某丙等44名被告人提起公诉。同年9月至12月，上海市静安区人民法院先后对徐某甲、朱某某、徐某乙等被告人以职务侵占罪、侵犯公民个人信息罪判处拘役四个月至有期徒刑五年不等刑罚，并处相应罚金。其中，上海市静安区人民法院分别以职务侵占罪判处被告人徐某乙有期徒刑二年六个月，并处罚金人民币九万元；以职务侵占罪、侵犯公民个人信息罪判处被告人徐某甲有期徒刑五年，并处罚金人民币二十一万元，判处被告人朱某某有期徒刑四年四个月，并处罚金人民币二十万元。 |
| II. Performance of Duties by the Procuratorial Authority | | 二、检察机关履职过程 |
| 1. Guidance was provided on investigation and evidence collection to accurately determine the nature of cases. Since August, 2020, the Jing'an Branch of the Shanghai Municipal Public Security Bureau has docketed multiple reports of insurance companies being cheated of commissions for newly-recruited insurance agents, involving millions of yuan. After the crime was committed, the Jing'an District People's Procuratorate of Shanghai Municipality intervened in advance, and conducted an in-depth analysis of and accurately determined key facts such as whether the suspect took advantage of his position: first, the insurance policy is authentic; second, the criminal gang of the underground insurance industrial chain recorded the policies subject to pending orders in the name of the newly recruited insurance salesmen to defraud the rewards for new recruit. This essentially took advantage of the position of the staff from the insurance company; third, the amount of training allowance and bonus for new recruits obtained through "pending orders” should be the amount of embezzlement. At the same time, the criminal investigation authority was required to obtain evidence and audit the amount involved, thus laying a solid foundation for the smooth investigation of the case. | | 1. 引导侦查取证，准确定性案件。2020年8月起，上海市公安局静安分局立案多起保险公司被骗新进保险代理人佣金的报案，涉案金额数百万元。案发后，上海市静安区人民检察院提前介入，围绕嫌疑人是否利用职务便利等关键事实，深入分析研判并准确认定：一是保单具有真实性；二是“保险黑产”犯罪团伙将保单“挂单”在新进保险业务员名下目的是骗取新人奖励，这一“挂单”行为本质上利用了保险公司工作人员的职务便利；三是通过“挂单”行为多获取的新人训练津贴、增员奖金额为职务侵占金额。同时，要求侦查机关针对涉案金额进行取证和审计，为案件顺利查办奠定扎实基础。 |
| 2. The examination of cases was strengthened, and a thorough investigation was conducted of omitted offenders and crimes. Since the case involves many persons and levels and the criminal activities present the characteristics of underground interest chains and industrial chains, a comprehensive examination of the case was conducted to make clear the structure of the criminal gangs and distinguish the hierarchical roles of the persons involved. It was found through intensified interrogation that Xu B, the business director of S Company, not only conspired with Xu A to commit crimes, but also committed crimes together with his nine business directors. Therefore, the pursuit and prosecution of the aforesaid nine people were proposed in a timely manner, and all of them were successfully pursued and prosecuted. At the same time, it was found that another sales division of S Company was also involved in the crime of "underground insurance industrial chain", involving more than 3 million yuan. Therefore, the case opening of Liu A's criminal gang involved in the case was supervised. A total of five cases were successively docketed, and 25 people were involved, of whom 23 have been sentenced. | | 2. 加强案件审查，深挖漏犯漏案。针对案件人数多、层级多，以及犯罪呈现黑灰利益链、产业链的特点，对案件开展全面审查，梳理犯罪团伙人员架构，区分涉案人员层级作用，加大讯问力度，发现S公司业务总监徐某乙不仅与徐某甲共谋实施犯罪，还与其手下9名业务主任共同实施犯罪，遂对上述9人及时提出追捕、追诉意见，并全部追捕追诉到案。同时发现S公司另一个营业部也涉及“保险黑产”犯罪，涉案金额300余万元，遂对涉案的刘某某犯罪团伙监督立案，先后立案5件25人，其中23人已判决。 |
| 3. A public interest action was filed to protect citizens' information. The Jing'an District People's Procuratorate of Shanghai Municipality found when handling the case that the defendants were suspected of illegally buying and selling the personal information of insurance applicants, so it initiated a criminal investigation of this clue by filing a civil public interest action. After further obtaining relevant evidence, it filed a civil public interest action incidental to a criminal case against four relevant persons who infringe on citizens' personal information. On June 15, 2021, the court ruled that the relevant defendants should publicly apologize in the state-level news media, permanently delete the personal information of citizens stored in their computers, and compensate for the loss of public interests totaling 325,000 yuan. | | 3. 提起公益诉讼，保护公民信息。上海市静安区人民检察院在办案中发现被告人涉嫌非法买卖保险投保人个人信息的行为，遂对该线索以民事公益诉讼立案审查，在进一步调取相关证据后，对4名相关人员侵犯公民个人信息案提起刑事附带民事公益诉讼。2021年6月15日，法院判决相关被告人在国家级新闻媒体上公开赔礼道歉、永久删除存储在电脑中的公民个人信息、赔偿公共利益损失共计人民币32.5万余元。 |
| 4. A procuratorial recommendation was issued to promote industry governance. For the problems found in handling cases, such as the insurance company's failure to strictly examine the identity of insurance salesmen and to encrypt information on applicants, a procuratorial recommendation was issued to the company to supervise the enterprise in making practical rectification, strictly managing and operating in compliance with provisions. At the same time, a procuratorial recommendation over problems exposed in the industry was issued to the Shanghai Insurance Association, and suggestions were put forward in eight aspects, including control of information on applicants, management of business account use, verification of employees' identity, and handling of complaints and policy surrenders, and all were adopted. Furthermore, the actual needs of the industry were accurately met in conjunction with the Shanghai Insurance Association and related insurance enterprises. A series of lectures on law popularization was held in the form of offline training and communication and online live lectures, and live training on warning education was conducted for more than 50,000 insurance employees in the Yangtze River Delta region. | | 4. 制发检察建议，推动行业治理。针对办案中发现的保险公司未严格审核保险销售人员身份、投保人信息未加密等问题，向该公司制发检察建议，督促企业切实整改、严格管理、合规经营。同时，就行业中暴露出的问题，向上海市保险同业公会制发检察建议，就投保人信息管控、业务账号使用管理、从业人员身份审核、投诉退保件处理等8个方面提出建议，均被采纳。此外，联合上海市保险同业公会、相关保险企业，精准对接行业实际需求，以线下培训交流、线上直播授课的形式开展系列普法讲座，为长三角地区的5万余名保险从业人员开展警示教育直播培训。 |
| III. Significance | | 三、典型意义 |
| 1. Equal emphasis has been placed on case handling and supervision. The quality and efficiency of supervision have been improved while investigating and dealing with those involved in the case both inside and outside enterprises according to law. “Conducting supervision in case handling and handling cases during supervision” reflects the integration of the judicial function and legal supervision function of procuratorial authorities in the new era. While handling cases according to the law, procuratorial authorities should: first, actively supervise case opening, and discover and correct illegal circumstances where cases should have been opened, when handling cases, so as to improve the ability to find and deal with clues. Second, the supervision of investigation activities should be promoted, and measures should be taken to intervene in the investigation and guide evidence collection of new major, difficult and complicated cases. Consultations should be conducted with investigation authorities to make investigations and evidence collection more effective and targeted. Third, omitted offenders should be prosecuted according to the law. The precise examination of gang crime cases should be conducted by region and level, and cases and the organizational structure of personnel should be clarified. The omitted prosecution of accomplices should be corrected in a timely manner, and the criminal networks should be destroyed on a whole-chain basis. | | 1. 坚持办案与监督并重，在依法查处企业内外涉案人员的同时，提升监督质效。“坚持在办案中监督、在监督中办案”是新时代检察机关司法职能与法律监督职能融合发展的体现。检察机关在依法办案的同时，一要积极开展立案监督，在办案中及时发现和纠正应当立案而不立案的违法情形，提高线索发现处理能力。二要推进侦查活动监督，就新型重大、疑难、复杂案件介入侦查引导取证，与侦查机关会商研判，提高侦查取证活动有效性、针对性。三要依法追诉漏犯，针对团伙犯罪案件开展分区分级精准化审查，厘清案情与人员组织架构，及时纠正遗漏起诉同案犯，全链条摧毁犯罪网络。 |
| 2. Substantive integration of the criminal and public interest action businesses has been achieved. Civil public interest actions incidental to criminal cases are filed to severely crack down on infringement of citizens' personal information. On the one hand, procuratorial authorities should firmly grasp their responsibilities, promote the comprehensive and coordinated development of the four procuratorial functions, establish and improve the transfer system for internal clues of procuratorial authorities, and improve the cooperation mechanism for handling cases. On the other hand, as representatives of public interests, procuratorial authorities may file civil public interest actions incidental to criminal cases against violators who infringe on many citizens' personal information in criminal cases, comprehensively safeguard citizens' information security, and strengthen judicial protection of public interests, so as to improve the quality and efficiency of procuratorial work with the ultimate standards. | | 2. 刑事与公益诉讼业务实质性融合，依法提起刑事附带民事公益诉讼，严厉打击侵犯公民个人信息行为。一方面，检察机关要牢牢把握职责定位，推动“四大检察”全面协调发展，建立健全检察机关内部线索移送制度，完善办案协作机制。另一方面，检察机关作为公共利益的代表，可以对刑事案件中侵犯众多公民个人信息的违法行为人依法提起刑事附带民事公益诉讼，全面维护公民个人信息安全，加大公共利益司法保护力度，以求极致的标准提升检察工作质效。 |
| 3. The punishment of crimes with the governance of the source of litigation are combined, and multiple measures have been taken to better leverage the role of rule of law in guiding, regulating, and guaranteeing the sound development of the industry. While ensuring rule of law, procuratorial authorities should modernize the national governance system and governance capacity, proactively perform their duties according to the law, and improve the governance of litigation sources in a further, practical, and detailed manner, so as to improve the efficiency of national governance. Investigations should be carried out in a down-to-earth manner in light of the cases handled to identify areas of weakness and prominent issues in the industry and timely put forward suggestions on strengthening management and establishing rules and regulations for the entity where the case occurs and relevant departments. Special rectification should be further carried out by means of inspection and evaluation of third-party mechanisms for enterprise compliance, procuratorial suggestions, and legal publicity. Thus, handling a group of cases would help solve a type of problems and govern an industry, thereby achieving higher-level and higher-standard governance at the source. | | 3. 惩治犯罪与诉源治理结合，多措并举，更好发挥法治对行业健康发展的引领、规范、保障作用。检察机关要坚持在法治轨道上推进国家治理体系和治理能力现代化，依法能动履职，做深做实做细诉源治理，提升国家治理效能。结合办理的案件，要扎实开展调查研究，查找行业领域的薄弱环节和突出问题，及时向案发单位、有关部门提出加强管理、建章立制的建议，通过企业合规第三方机制考察评估、检察建议、普法宣传等手段，深入开展专项整治，达到办理一批案件、解决一类问题、治理一个行业的效果，实现更高层面、更高水平的源头治理。 |
| People v. the Y E-commerce Enterprise's Operating Official Lei A (embezzlement) | | Y电商企业运营人员雷某某职务侵占案 |
| [Keywords] | | 【关键词】 |
| embezzlement, virtual goods purchase, guidance of evidence collection, compliance management, fight against corruption on e-commerce platforms | | 职务侵占 虚拟物品采购 引导取证 合规经营 电商平台反腐败 |
| [Key Points] | | 【要旨】 |
| In handling cases of embezzlement involving e-commerce enterprises, it is important to accurately identify the purpose of illegal possession and clarify the boundaries between embezzlement and misappropriation of funds in light of the characteristics of the Internet-enabled new economic model, so as to severely punish the internal corruption of e-commerce enterprises. For the difficulties in the evidence collection and investigation and punishment and easy loss of electronic data on virtual goods in cases of duty-related crimes involving e-commerce, procuratorial authorities should actively guide public security authorities in investigating and collecting evidence. For the corruption within the enterprise exposed in cases, procuratorial recommendations should be issued to encourage enterprises to establish rules and regulations, plug loopholes, and operate in compliance with provisions. Meanwhile, suggestions should be put forward to supervise e-commerce platforms in optimizing rules and improving anti-corruption mechanisms, so as to create a fairer legal environment and provide better legal protection for the sound development of e-commerce enterprises and industries. | | 在办理涉电商企业职务侵占案件中，要结合互联网新经济模式特性，准确认定非法占有目的，厘清职务侵占与挪用资金犯罪的界限，严惩电商企业内部腐败。针对电商职务犯罪案件中虚拟物品电子数据取证难、查处难、易灭失等问题，检察机关要积极引导公安机关调查取证。针对案件暴露出的企业内部腐败问题，制发检察建议，推动企业建章立制、堵塞漏洞、合规经营，同时提出建议督促电商平台优化规则，完善反腐败机制制度，为电商企业与行业健康发展营造更加公平的法治环境、提供更加优质的法治保障。 |
| I. Basic Facts | | 一、基本案情 |
| From December 2019 to March 2020, when the defendant Lei A (with partial name withheld) worked as an operating officer for a Zhejiang-based company engaged in wall cloth (hereinafter referred to as “Y E-commerce Enterprise”), the defendant fabricated the causes of using money to send virtual gifts to one of the company's live-streaming platforms and requesting friends working on e-commerce platforms for public relations, by taking advantage of his job of helping the company to promote the brand online and purchasing live broadcasting equipment, and applied for a total of 180,295.05 yuan for reserve funds and public relations fees from the company and took them as his own for personal squandering. | | 2019年12月至2020年3月，被告人雷某某担任经营墙布的浙江某公司（以下简称Y电商企业）品牌运营期间，利用帮公司线上推广品牌、采购直播设备、申请某电商平台店铺等职务便利，编造将钱款用于向公司某直播平台刷礼物、找就职于电商平台的朋友公关等事由，向公司申领备用金、公关费等共计人民币180295.05元并占为己有，用于个人挥霍。 |
| On December 14, 2020, the People's Procuratorate of Yuecheng District, Shaoxing City, Zhejiang Province filed a public prosecution against the defendant Lei A on a charge of embezzlement. On December 25, 2020, the People's Court of Yuecheng District, Shaoxing City sentenced Lei A to one year's imprisonment for the crime of embezzlement. | | 2020年12月14日，浙江省绍兴市越城区人民检察院对被告人雷某某以职务侵占罪提起公诉。2020年12月25日，绍兴市越城区人民法院以职务侵占罪判处雷某某有期徒刑一年。 |
| II. Performance of Duties by the Procuratorial Authority | | 二、检察机关履职过程 |
| 1. Guidance was provided on the investigation to accurately determine the nature of cases. The public security authority submitted a request to the procuratorial authority for approval of the arrest of Lei A on suspicion of the crime of his misappropriation of funds. To ascertain the facts of the case, the procuratorial authority guided the public security authority in investigating the whereabouts of the money misappropriated by Lei A, his financial conditions, the company's financial management provisions, and the record on the claim from Lei A, only to find that Lei A used false receipts to apply for reimbursement and disposed of the money spent on luxury goods. The financial conditions under which Lei A and his family are unable to repay finally reflect Lei A's subjective intention of illegal possession of the company's money. The case was accurately defined as embezzlement, and enterprise property was protected according to the law. | | 1. 引导侦查，把准案件定性。公安机关以雷某某涉嫌挪用资金罪向检察机关提请批准逮捕。为查明案件事实，检察机关引导公安机关调查雷某某挪用钱款去向、个人经济情况、公司财务管理规定及向雷某某的催讨记录等，查明雷某某存在使用虚假收据报销的侵吞行为，挥霍购买奢侈品的钱款处置事实，自身及家庭无力偿还的经济状况，最终明确雷某某非法占有公司钱款的主观故意，将案件准确定性为职务侵占，依法保护企业财产。 |
| 2. Verification was strengthened, and vulnerabilities in management were identified. The traditional financial management system for reimbursement by employees of an enterprise is that the employees are reimbursed with invoices and sales documents after being approved at different levels. The goods and services purchased by the employees may be proved by invoices and documents, and the goods and services are publicly visible within a certain scope of the company. However, virtual items such as buying virtual gifts and enhancing popularity are invisible in e-commerce enterprises. If enterprises do not follow up supervision and verification, these items are not easy to detect, which would easily cause financial losses. In this case, to verify whether Lei A used the money to give virtual gifts to enhance the popularity of the company's account on a live streaming platform, the procuratorial authority guided the public security authority in finding the purchase records on platform coins from Lei A's mobile phone by getting to know the operation mode of buying virtual gifts on the live streaming platform, thus confirming the falsehood of his defense. | | 2. 加强核实，查找管理漏洞。传统企业员工报销的财务管理制度一般是员工凭发票、销售单据经层层审批后报销，员工购买的物品、服务有发票单据可予证明，物品、服务在公司一定范围内公开可见。但电商企业中如充礼物、提热度等虚拟物品并非有形可见，企业若不跟进监督核实，不容易察觉，易造成经济损失。本案为核实雷某某是否将钱款用于为公司在某直播平台的账户刷礼物以提升热度，检察机关通过了解该直播平台刷礼物的操作方式，引导公安机关从雷某某手机中查找平台币的购买记录，从而证实其辩解的虚假性。 |
| 3. An active approach was taken to help the enterprise fight corruption. The e-commerce company involved in the case applied in vain to open a flagship store on an e-commerce platform, though it met the requirements. Instead, it resorted to informal channels. Lei A falsely claimed that he or she knows the staff of the e-commerce platform, who can help the enterprise develop public relations, and applied for the public relations fees from the company for his own consumption and squandering. After the case is concluded, the procuratorial authority issued procuratorial suggestions to the enterprise involved, guiding the enterprise in correcting their ideological understanding and putting an end to the fluky mentality of "going the side doors ", so as to promote the legal and compliant operation of enterprises. At the same time, suggestions were put forward on e-commerce platforms for problems such as the opaque entry threshold for the application process of stores in e-commerce platforms, unclear information notification, and easily causing integrity risks to supervise platforms in improving anti-corruption management mechanisms in an effort to plug regulatory loopholes at the institutional and technological levels. The information publicity of the fight against corruption on e-commerce platforms was strengthened, and the mechanism for the fight against corruption on e-commerce platforms was constantly improved. | | 3. 主动作为，助力企业反腐。涉案电商企业申请在某电商平台开设旗舰店，其符合条件却未通过，转而寻求非正规渠道。雷某某谎称认识该电商平台工作人员可帮助企业公关，向公司申领公关费后供自己消费挥霍。案件审结后，检察机关向涉案企业制发检察建议，引导企业端正思想认识，杜绝“走偏门”的侥幸心理，促进企业合法合规经营。同时，针对电商平台店铺申请环节准入门槛不透明、信息告示不明晰、易造成廉洁风险等问题向电商平台提出建议，督促平台改善反腐败管理机制，从制度、技术等层面堵塞监管漏洞，加强平台反腐败信息公示，不断完善平台反腐败机制。 |
| III. Significance | | 三、典型意义 |
| 1. The internal corruption of enterprises was severely punished according to the law, which helped effectively safeguard the legitimate rights and interests of e-commerce enterprises. As important promoters, participants, and leaders of the Internet-enabled new economic model, e-commerce enterprises provide a new driving force for economic development. Most of its commercial activities are characterized by online, virtual, and electronic promotion, and the concealment of crimes is gradually enhanced, making it more difficult to investigate cases. By handling this case, the procuratorial authority accurately identified the subjective purpose of the defendant's illegal possession from the aspects of repayment ability, money destination, and whether there was a fraud, clarified the boundaries between embezzlement and misappropriation of funds, and accurately grasp case charges, so as to promote the correct application of laws, severely punish corruption within e-commerce enterprises in accordance with the law, and safeguard their legitimate rights and interests. | | 1. 依法严惩企业内部腐败，有力维护电商企业合法权益。电商企业作为互联网新经济模式的重要推动者、参与者、引领者，为经济发展提供了新的动能。其商业活动多具有推广行为线上化、虚拟化、电子化特点，犯罪隐蔽性逐步增强，案件查办难度进一步增大。检察机关通过办理本案，从还款能力、钱款去向、有否作假行为等方面准确认定被告人非法占有的主观目的，厘清职务侵占罪与挪用资金罪的界限，精准把握案件罪名，促进法律正确适用，依法严惩电商企业内部腐败犯罪，维护企业合法权益。 |
| 2. A thorough investigation of electronic evidence was conducted to actively guide the evidence collection for duty-related crimes involving e-commerce. For the acts of purchasing virtual goods by employees of e-commerce enterprises in brand promotion, such as giving virtual gifts or buying data traffic, the procuratorial authority effectively solved the problems of difficulty in obtaining evidence, investigating and dealing with electronic data of virtual goods in duty-related crimes involving e-commerce and the easy loss thereof by seizing the key evidence for electronic data on "payment records", thus providing guidance for enterprises to supervise the purchase of virtual goods and the extraction of electronic data by the investigation authority. At the same time, the procuratorial authority thoroughly investigated, among other things, the defendant's financial conditions and illegal operation of enterprises and reinforced the evidence of the defendant's subjective intention, tried to identify the potential risks of e-commerce enterprises as much as possible, thus improving the legal and social effects of handling cases. | | 2. 深挖彻查电子证据，积极引导电商职务犯罪取证。对电商企业员工在品牌推广中“刷礼物”、“买流量”等采购虚拟物品的行为，检察机关抓住“付款记录”这一关键电子数据证据，有效破解了电商职务犯罪中虚拟物品电子数据取证难、查处难、易灭失等问题，为企业监督虚拟物品采购、侦查机关提取电子数据提供指引。同时检察机关深入调查被告人经济状况、企业违规经营等情况，对认定被告人主观故意的证据予以补强，挖掘出电商企业存在的风险隐患，提升了办案的法律效果和社会效果。 |
| 3. The procuratorial function was fully extended, and the compliance operation of e-commerce enterprises was further promoted. A timely investigation and identification of the potential social risks behind the cases of e-commerce enterprises were carried out. An active approach was taken to put forward countermeasures and suggestions to promote the solution of prominent problems affecting the development of the industry in a wider scope and at a deeper level. On the one hand, for enterprises' violations during their business operation, vivid cases were used to strengthen warning education to enhance the legal awareness of enterprises and employees. Internal management mechanisms were established and improved to boost the governance of litigation sources and prevent criminal risks within enterprises. On the other hand, suggestions were put forward on the corruption of e-commerce platforms that may easily cause public misunderstanding, and the platform was supervised in optimizing rules in a timely manner, with a focus on improving the effectiveness of communication between the platform and merchants. This thus would help create a fairer legal environment and provide a better legal guarantee for the sound development of e-commerce enterprises and industries. | | 3. 充分延伸检察职能，深入推进电商企业合规经营。及时排查发现电商企业案件背后的社会风险隐患，主动提出对策建议，促进在更大范围、更深层次解决影响行业发展的突出问题。一方面，对企业在经营过程中的违规行为，运用鲜活的案例加强警示教育，提升企业和员工法律意识，建立健全内部管理机制，助推诉源治理，防范企业内部刑事犯罪风险。另一方面，对容易引起大众误解的电商平台腐败问题提出建议，推动平台及时优化规则，着力提升平台与商家沟通成效，努力为电商企业与行业的健康发展营造更加公平的法治环境、提供更加优质的法治保障。 |
| People v. Zhang A, director of the marketing center of D Technology Company, and the company's manager Luo A, (embezzlement) | | D科技公司营销中心总监张某某、经理罗某某职务侵占案 |
| [Keywords] | | 【关键词】 |
| embezzlement, fraudulent increase of trading links, case opening supervision, recovery of stolen property and losses, social governance | | 职务侵占 虚增交易环节 立案监督 追赃挽损 社会治理 |
| [Key Points] | | 【要旨】 |
| When performing the function of protecting the private economy, the procuratorial authority should actively communicate with enterrprises and create a good business environment for the development of enterprises by building a platform for communication between procuratorial authorities and enterprises and carrying out supervision over case opening. For the new types of difficult cases such as the fraudulent increase of intermediate transactions, the evidence system should be consolidated by returning supplementary criminal investigation and conducting a self-supplementary criminal investigation. A goal-oriented approach should be adopted, and multiple measures should be taken to recover stolen property and losses to protect the funds of private enterprises. At the same time, the procuratorial functions should be extended to actively participate in the compliance management of enterprises and social governance. | | 检察机关在履行民营经济保护职能过程中，要主动“走出去”，通过搭建检企交流平台、开展立案监督为企业发展营造良好营商环境。面对虚增中间交易环节等新型疑难案件，通过退回补充侦查和自行补充侦查夯实证据体系。要坚持目标导向，多措并举追赃挽损，守护好民营企业的“钱袋子”，同时延伸检察职能，积极参与企业合规经营社会治理。 |
| I. Basic Facts | | 一、基本案情 |
| From 2018 to 2019, the defendant Zhang A (with partial name withheld) worked successively as Senior Manager of Yunnan Office and Director of Southwestern Regional Marketing Center of Guangzhou D Company, and the defendant Luo A successively served as Manager and Senior Manager of the above offices. During this period, when they were responsible for and in charge of the sales business of "an interactive intelligent tablet product and accessories" (hereinafter referred to as the "product") in Yunnan, the two persons incited the sales staff of the Company to deliberately conceal from the Guangzhou Company and customers respectively the truth that direct transactions can be conducted, and fabricated the fact that transactions can be conducted only through the exclusive distributor in Yunnan, through which they fraudulently add the trading links of A Company in Kunming and Yunnan B Company, jointly invested by the two persons, as exclusive distributors. The two persons then took advantage of their positions in charge of reviewing and approving the sales price of a product to help A Company and B Company buy the product from the Guangzhou Company at a lower price, and resell it to customers at a higher price. Through the Buy Low, Sell High strategy, they misappropriated the property of D Company, totaling 1.55 million yuan. In the end, they made personal gains in the name of dividends for the shareholders of Company A and Company B. | | 2018年至2019年，被告人张某某先后担任广州D公司西南区域营销中心云南办事处高级经理和西南区域营销中心总监，被告人罗某某先后担任上述办事处经理和高级经理。期间，二人利用负责和主管“某交互智能平板产品及配件”（以下简称：某产品）在云南区域的销售业务，指使该公司销售人员分别向广州公司及客户故意隐瞒可以直接进行交易的真相，虚构必须通过云南区域总经销才能进行交易的事实，以此虚增二人参股的昆明A公司、云南B公司作为总经销的中间交易环节；后二人再利用负责审核及审批某产品销售价格的职务便利，帮助A公司、B公司以较低价格从广州公司购入某产品，随后以较高价格转卖给客户，通过“低买高卖”赚取差价的方式侵占D公司的财产共计人民币155万余元，最终二人以A公司和B公司股东分红的名义从中获取个人利益。 |
| ．．．．．． | | ．．．．．． |
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