Analysis On Mr.Niu's Corruption Crime

As in Niu's embezzlement case,Niu was guilty of embezzlement according to the first instance judgement,Niu was exempted from criminal punishment,after the verdict became effective,the court of first instance,with the court president ' s discovery,and the conclusion that the law was erroneously applied after submitting to and discussion in the judicial committee,determined that the case should be retried,after retrial,the verdict declared the defendant Niu was not guilty,the procuratorial organ challenged the retrial verdict,and brought a protest to the higher court,after trial the court of second instance decided that the retrial verdict was upheld with the opinion that the law was applied correctly and the legal proceedings were legitimate in the retrial.It can be seen from the trial process that,the court and the procuratorate had big difference regarding to the applications of law and specific convictions,even the opinions were not the same in different times within the court.After straightening out,there are mainly three points at issue between the court and the procuratorate regarding the case: the first point is,whether the case is a unit crime or a crime of natural person,whether Article 396 of the criminal law,which specifies the crime of unauthorized partition of state property,or Article 382 of the criminal law,which specifies the crime of embezzlement,shall be applicable;the second point is whether Niu ' s criminal behaviour is with open characteristics or concealed characteristics;the third point is,based on Niu ' s criminal status and role in the case,whether Niu shall bear criminal responsibility.Through comprehensively differentiating,it will finally be drawn that,the case is a unit crime,not a common crime by natural persons,the criminal behaviour committed by Niu reflects the unit's will instead of his personal will,the workshop of Beijing Electric Power Overhaul Section under the Beijing Railway Bureau,as an inner organ,can be the subject of a unit crime,hence it is appropriate to apply Article 396 of the criminal law specifying the crime of unauthorized partition of state property;the unauthorized behaviour committed by Niu was without concealed circumstance,on the contrary,it has an open feature;based on Niu's status and role in the case,he was not a person in charge who would be directly responsible,neither he belongs to other directly responsible personnel,according to Article 396 of the criminal law,he shall be exempted from criminal responsibilities.So in the case,both of the retrial verdict and the second stance decision were correct,the erroneous application of law did exist in the first stance judgement.