尊敬的审判长、审判员、人民陪审员：

浙江利群律师事务所接受台州市法律援助中心的指派，指派黄道进律师担任上诉人洪某某涉嫌贪污罪一案二审的辩护人参与本案的诉讼活动。接受指派后，本辩护人仔细的阅读了所有卷宗材料，并通过与上诉人的会见，又参加了今天的法庭调查，使我对本案有了比较全面和客观的认识，现根据本案事实，并结合相关证据材料，发表以下辩护意见，供合议庭参考。

我总的辩护意见主要有两点，一是，一审判决书认定上诉人参与协调办理基础设施配套费抵退石渣款并分得3万元的事实不清、证据不足；二是，即便上诉人最终拿到了3万元钱，上诉人的行为也不具备贪污罪共同犯罪的主、客观方面构成要件，上诉人的行为不构成贪污罪，一审法院以贪污罪判处上诉人一年有期徒刑的判决是错误的判决，依法应当予以撤销并改判上诉人洪某某无罪。现将辩护观点分述如下：

一、如果按照一审法院认定上诉人分得3万元，且不论事实上上诉人是否拿到这笔钱，假设真的拿到了3万元，上诉人的行为也不构成贪污罪共同犯罪。

（一）根据我国《刑法》和最高院《关于审理贪污、职务侵占案件如何认定共同犯罪的几个问题的解释》【法释(2000)15号）】之相关规定，所谓共同贪污犯罪，是指二人以上共同实施的贪污犯罪行为。

它有以下特点：一是贪污行为人必须是两人(含二人)以上；二是行为人共同实施了非法占有公共(国有)财物或非国有单位财物的行为；三是行为人之间具有共同贪污的故意；四是各共同贪污犯罪人在共同故意支配下，彼此联系，互为条件；五是共同贪污行为造成了总和犯罪结果，即贪污总额是每个共犯共同故意造成的统一结果。

但是，就本案实际情况而言，从检方所提供的证据来看，既看不到上诉人洪某某与黄某某、王某某、吴某某等人共同实施了侵吞23.3万元公款的行为；也无法印证上诉人洪某某与其他人之间具有共同贪污的故意；更不存在上诉人洪某某与其他被告人在共同故意支配下，彼此联系，互为条件，在共同贪污行为下造成的总和犯罪结果。因此，上诉人不应当对黄某某、王某某、吴某某的贪污行为承担刑事责任。

（二）上诉人洪某某对于黄某某、王某某、吴某某三人有共同贪污念头的事情不知情，对他们讨论如何贪污、如何分钱的事情不知情，对他们共同决策并决定贪污的事情不知情，最后，对他们23.3万元的钱什么时候拿到也不知情。上诉人洪某某在本案中完全属于局外人，不应当对共同贪污承担刑事责任。

1、吴某某2012年7月3日10:05分—19：20分所做的笔录可以看出（见第三页第8行—13行），“就在2007年下半年时，我们指挥部的人都说大家很辛苦，待遇又低，抱怨声很多，一次在指挥部黄某某办公室里，黄某某对王某某说，指挥部工程量大，事也多，叫我们想想办法弄点花露水，装点钞票出来大家用用，我说这么辛苦，装点钞票出来大家用用也是应该的。说真的，我当时听到总指挥都这么说了，以后有钱可分，内心也是很高兴的。当时我们想到的是以后通过洪某宝虚增工程量，从接到套些钱出来分分。”由此可见，黄某某、王某某、吴某某三人早在2007年间就开始有了贪污的想法和动机，其贪污的目标就是套取某某街道的钱。需要提请合议庭注意的是，上诉人洪某某是在2008年3月份开始调入城建办的，之前都在椒江区某某街道信访办工作，跟指挥部的事情不存在任何交集。

2、2007年间，指挥部向东部园区各个企业收取的石渣款后，已经提前支付给了洪某宝23.3万元，并且，在2008年下半年间指挥部跟企业进行结算时发现应当退还四家企业23.3万元，即台州某某工贸企业10.5万元、台州某某缝纫机有限公司2.8万元、椒江某某针织服装厂5万元、台州某某针纺有限公司5万元。据此，我们有合理的理由怀疑，黄某某、王某某、吴某某在2007—2008年间就已经对该款项进行了贪污、私分，这种可能性是完全存在的。至于为什么会出现以后的通过配套费抵退石渣款的事情，不排除黄某某、王某某、吴某某出于恐惧，害怕事情暴露而采取的后续补救措施。因此，贪污行为黄某某、王某某、吴某某三人可能在2007—2008年间就已经终结，故而，跟上诉人不存在任何关联性。

3、提议贪污23.3万元钱系首先由王某某提出，并且经过了时任椒江区某某街道办事处主任黄某某的同意确认所决定，这一点，从吴某某、王某某的笔录能够得到相互印证。见吴某某2012年7月3日笔录，“……我和王某某到黄某某办公室，王某某说，之前用配套费抵退石渣款多出的20多万元现在是否可以从洪某宝那里拿回来化解一下，大家可以分点用用，黄某某点头同意……”见王某某2012年7月14日笔录，“2009年上半年，我和吴某某来到黄某某的办公室，对黄某某讲，现在那四家企业要求退回多交的石渣款，或用配套费抵退，是不是从洪某宝那里把之前多打给他的石渣款拿回来退回给他们企业。黄某某说，在洪某宝那里的钱是准备以后我们装点分分的，先不要动……”可见，上诉人对这些商议、讨论和决定贪污的事情根本是一无所知，更不用说是共同犯罪故意和实施犯罪行为了，本案中的贪污行为，完全是由黄某某、王某某和吴某某谋划、讨论和决定的，上诉人根本没有参与其中，跟上诉人无任何关系。

4、对于23.3万元的贪污款，系由黄某某、王某某、吴某某所实施，该笔款项什么时候贪污到手上诉人根本不知情，并且，从贪污的全过程来看，贪污行为实施之前，黄某某、王某某、吴某某早就有犯意，而上诉人却始终没有也不知情。至于1.7万元洪某宝以虚报工程量的方式套取的费用，上诉人也始终不知情，更没有参与。

5、上诉人洪某某没有参与协调基础设施配套费抵退石渣款的事情，作为洪家街道城建办工作人员，上诉人忠于职责，对于每一笔配套费的收取都是严格按照规定执行。从案卷材料当中也能充分反映出来，上诉人在配套费抵退石渣款的所有账目中都没有签名，事实上，上诉人对于如何抵退、何时抵退根本一无所知。而显而易见的是，黄某某、王某某、吴某某却在每一笔的抵退手续中都有签字同意。故而，一审法院认定上诉人参与协调抵退事实是错误的。

6、在黄某某、王某某、吴某某贪污行为已经实行完毕的情况下，如果说他们三人后来因为顾虑到上诉人系城建办人员或许对他们的贪污行为知情而给予上诉人3万元所谓的“封口费”，假设按照一审法院的意思，上诉人分到了3万元，那么这种行为怎么定性？黄某某、王某某、吴某某的共同贪污行为已经终结，事后将3万元的赃款分给上诉人作为“封口费”就认定是贪污罪共同犯罪？上诉人与黄某某等人事先根本没有犯罪的合意，贪污罪又何以认定？且不说假设上诉人收到3万元“封口费”是否属于违纪还是其他定性，但却绝对不构成贪污罪共同犯罪。打个比喻，张三和李四一起到某某街道盗窃，在偷到10万元现金后，被王五知道了，怕王五将此事说出去，然后张三和李四给了王五3万元作为“封口费”，难道王五的行为就构成盗窃罪共同犯罪了？显然，王五不应当对盗窃承担刑事责任。

二、上诉人并未拿到3万元贪污款，一审法院事实认定不清、证据不足。

1、从上诉人的供述来看，从纪委到反贪局到公诉科再到一审乃至现在的上诉，都是不完全一致的，为什么会出现这种情况？用上诉人自己的话说就是瞎承认下来能够免于刑事处罚，并且能够保留公职，这种心情是完全能够理解的。更何况上诉人身体状况也不好，有高血压，以为胡乱承认了，就会没事了。因此，上诉人的笔录，基本上就是在这种情形下做出来的。

2、上诉人对于黄某某、王某某、吴某某如何操作基础设施配套费抵退石渣款的事情不知情，具体如何抵退等方式和行为都是黄某某三人运作、实施的。并且，从办理抵退手续来看，每一笔也都是黄某某、王某某、吴某某的签字，而没有上诉人的签名。上诉人作为城建办人员，如果参与协调参与办理抵退手续，为什么经手人这栏都没有上诉人的签名？这显然不符合常理。因此，在上诉人对黄某某等人实施共同贪污行为不知情的情况下，而黄某某、王某某、吴某某又心甘情愿的将3万元现金交给上诉人，这于情于理都说不过去，自然，钱也不会分给上诉人。

综上，辩护人认为，上诉人主观方面没有共同贪污的故意，客观上也没有实施共同贪污的行为，根本不符合我国刑法所规定的贪污罪的的行为特征和构成要件，上诉人洪某某显然不构成贪污罪。

尊敬的审判长、审判员，尊贵的法庭，法庭尊贵，不是因为你们是执法者，而是，你们行使的权力，是你们身后，国徽象征的国家法律赋予的裁判权，这种裁判权力，是超越自然的，是神圣的。你们裁判的对与错，直接关系到法律适用的公正与否，直接关系到上诉人的清白以及对中国司法的信心。因此，辩护人希望二审法院本着审判独立、有错必纠的原则，依法撤销一审判决，并迳行改判上诉人无罪，以彰显司法公正，以赢得民心。

发言完毕，谢谢！

辩护人：浙江利群律师事务所

黄道进 律师

二O一四年一月八日

Dear Chief Judge, Judge, and People's Juror:

Zhejiang Liqun Law Firm has been appointed by the Taizhou Legal Aid Center to appoint Lawyer Huang Daojin as the defense for the second instance of the appellant Hong, who is suspected of corruption, to participate in the litigation activities of this case. After accepting the assignment, the defender carefully read all files and materials, and through meeting with the appellant and participating in today's court investigation, so that I have a more comprehensive and objective understanding of the case. Now, based on the facts of the case, and in combination with relevant evidence materials, the following defense opinions are issued for the reference of the Judicial panel.

My overall defense opinions mainly include two points. Firstly, the fact that the first instance judgment determines that the appellant participated in coordinating the handling of infrastructure supporting fees to offset the stone slag payment and received 30000 yuan is unclear and the evidence is insufficient; Secondly, even if the appellant ultimately received 30000 yuan, the appellant's behavior did not meet the subjective and objective constitutive requirements of the joint crime of corruption. The appellant's behavior did not constitute the crime of corruption. The first instance court's judgment of sentencing the appellant to one year's imprisonment for corruption was incorrect and should be revoked and the appellant, Hong, should be acquitted in accordance with the law. The defense viewpoints are now divided as follows:

1、 If the first instance court determines that the appellant received 30000 yuan, and regardless of whether the appellant actually received the money or not, assuming that they did receive 30000 yuan, the appellant's behavior does not constitute a joint crime of corruption.

（1） According to the relevant provisions of the Criminal Law of China and the Interpretation of the Supreme Court on Several Issues Concerning the Determination of Joint Crimes in the Trial of Cases of Embezzlement and Occupation of Duty (Fa Shi (2000) No. 15), the so-called joint corruption crime refers to the act of corruption committed by two or more people jointly.

It has the following characteristics: firstly, the perpetrator of corruption must be two or more people (including two people); The second is that the actors jointly engaged in illegal possession of public (state-owned) property or non-state-owned unit property; The third is that there is a common intention of corruption among the perpetrators; The fourth is that under the joint intentional control of common corruption offenders, they are interconnected and mutually conditional; The fifth is that the joint corruption behavior has caused the total criminal result, that is, the total amount of corruption is the unified result caused by the joint intention of each accomplice.

However, in terms of the actual situation of this case, from the evidence provided by the prosecution, it can be seen that the appellant Hong, Huang, Wang, Wu, and others jointly engaged in the embezzlement of 233000 yuan of public funds; It cannot be confirmed that the appellant, Hong, had a joint intention of corruption with others; Moreover, there is no total criminal result caused by the appellant Hong and other defendants under the joint intentional domination, mutual connection, mutual conditions, and joint corrupt behavior. Therefore, the appellant should not bear criminal responsibility for the corrupt behavior of Huang, Wang, and Wu.

（2） The appellant Hong was unaware of Huang, Wang, and Wu's shared ideas of corruption, their discussions on how to embezzle and divide the money, their joint decision-making and decision on corruption, and ultimately, when they received 233000 yuan of money. The appellant Hong is completely an outsider in this case and should not bear criminal responsibility for joint corruption.

1. It can be seen from the transcript made by Wu on July 3, 2012 from 10:05 to 19:20 (see lines 8-13 on page 3), "In the second half of 2007, people in our headquarters said that everyone worked hard, paid poorly, and complained a lot. Once, in the office of Mr. Huang in the headquarters, Mr. Huang said to Mr. Wang that the headquarters had a large amount of work and a lot of things. He asked us to think of ways to get some Florida Water and decorate money for everyone to use. I said it was so hard, and it was also appropriate to decorate money for everyone to use. To be honest, I heard that the commander in chief was here Well, in the future, money can be divided and I am also very happy. At that time, what we thought about was that in the future, we would increase the engineering quantity through Hong Moubao and distribute some money from receiving it From this, it can be seen that Huang, Wang, and Wu had the idea and motivation of corruption as early as 2007, with the goal of extorting money from certain streets. What needs to be noted by the Judicial panel is that the appellant Hong began to be transferred to the Urban Construction Office in March 2008. Before that, he had worked in the petition office of a certain street in Jiaojiang District. There was no intersection with the headquarters.

2. In 2007, after the headquarters collected stone slag payments from various enterprises in the eastern park, they had already paid 233000 yuan in advance to Hong Moubao. In the second half of 2008, when the headquarters settled with the enterprises, it was found that 233000 yuan should be refunded to four enterprises, namely 105000 yuan from a certain industrial and trade enterprise in Taizhou, 28000 yuan from a certain sewing machine Co., Ltd. in Taizhou, 50000 yuan from a certain knitting clothing factory in Jiaojiang, and 50000 yuan from a certain needle textile Co., Ltd. in Taizhou. Based on this, we have reasonable grounds to suspect that Huang, Wang, and Wu had already engaged in embezzlement and private distribution of the funds between 2007 and 2008, and this possibility is completely present. As for why there will be a case of using supporting fees to offset the stone slag payment in the future, it cannot be ruled out that Huang, Wang, and Wu have taken subsequent remedial measures out of fear and fear of the matter being exposed. Therefore, the corrupt behavior of Huang, Wang, and Wu may have ended between 2007 and 2008, so there is no correlation with the appellant.

3. The proposal to embezzle 233000 yuan was first put forward by Wang, and was confirmed by Huang, then the director of the Subdistricts of China of XX in Jiaojiang District. This can be mutually confirmed by the transcripts of Wu and Wang. On July 3, 2012, Wu recorded, "... Wang and I went to Huang's office, and Wang said, 'Can we take back the over 200000 yuan that was previously used to offset the excess of the stone slag payment with the supporting fee and resolve it now from Hong Moubao? Everyone can use it separately, and Huang nodded and agreed...'" Wang recorded on July 14, 2012, In the first half of 2009, Wu and I came to Huang's office and told him that the four companies now request to return the overpaid stone slag payment or offset it with supporting fees. Is it possible to take back the overpaid stone slag payment from Hong Moubao and return it to their company? Huang said that the money from Hong Moubao is intended for us to arrange and distribute it in the future, so please do not move... "It can be seen that the appellant is concerned about these discussions There is no knowledge about discussing and deciding on corruption, let alone joint criminal intent and committing criminal acts. The corruption behavior in this case was completely planned, discussed, and decided by Huang, Wang, and Wu, and the appellant did not participate in it and had no relationship with the appellant.

4. For the embezzlement of 233000 yuan, it was carried out by Huang, Wang, and Wu. The appellant had no knowledge of when the embezzlement occurred, and from the entire process of corruption, Huang, Wang, and Wu had already committed crimes before the embezzlement was carried out, while the appellant was never aware of it. As for the cost of 17000 yuan, which was falsely claimed by Hong Moubao through reporting the project quantity, the appellant remained unaware and did not participate.

5. The appellant, Hong, did not participate in coordinating the refund of infrastructure supporting fees against the stone slag payment. As a staff member of the Hongjia Street Urban Construction Office, the appellant is loyal to his duties and strictly follows the regulations for the collection of each supporting fee. It can also be fully reflected from the case materials that the appellant did not sign in all the accounts where the supporting fees were used to offset the stone slag payment. In fact, the appellant had no idea how or when to offset the refund. And it is obvious that Huang, Wang, and Wu have signed and agreed to each refund procedure. Therefore, it is incorrect for the first instance court to determine that the appellant participated in coordinating the fact of set-off.

6. In the case where Huang, Wang, and Wu have already completed their corrupt behavior, if the three of them later gave the appellant a so-called "sealing fee" of 30000 yuan due to concerns that the appellant was a member of the urban construction office or had knowledge of their corrupt behavior, assuming that according to the intention of the first instance court, the appellant was allocated 30000 yuan, how can this behavior be characterized? The joint corruption behavior of Huang, Wang, and Wu has come to an end, and the subsequent distribution of 30000 yuan of stolen money to the appellant as a "sealing fee" is considered a joint crime of corruption? The appellant and Huang and others had no prior intention of committing a crime, so how can corruption be determined? Assuming that the appellant receives a "sealing fee" of 30000 yuan, whether it is a violation of discipline or other qualifications, it does not constitute a joint crime of corruption. To put it metaphorically, Zhang San and Li Si went to a certain street to steal money. After stealing 100000 yuan in cash, Wang Wu learned about it and was afraid that Wang Wu would disclose it. Then, Zhang San and Li Si gave Wang Wu 30000 yuan as a "sealing fee". Does Wang Wu's behavior constitute a joint crime of theft? Obviously, Wang Wu should not bear criminal responsibility for theft.

2、 The appellant did not receive a embezzlement payment of 30000 yuan, and the first instance court's factual determination was unclear and the evidence was insufficient.

1. From the appellant's confession, it can be seen that the appeals from the Commission for Discipline Inspection, the Anti Corruption Bureau, the Public Prosecution Department, the first instance, and even now are not completely consistent. Why is this situation happening? In the appellant's own words, it is completely understandable that he can blindly admit that he can be exempted from criminal punishment and retain public office. Moreover, the appellant's physical condition is not good, and he has high blood pressure. He thought that if he admitted it recklessly, he would be fine. Therefore, the appellant's transcript was basically made in this situation.

2. The appellant is unaware of how Huang, Wang, and Wu operated the infrastructure supporting fees to offset the stone slag payment. The specific methods and behaviors of offsetting the fees were all operated and implemented by Huang. Moreover, from the perspective of handling the refund procedures, each transaction is also signed by Huang, Wang, and Wu, without the signature of the appellant. As a member of the Urban Construction Office, if the appellant participates in coordinating and handling the refund procedures, why is there no signature of the appellant in the handling column? This is clearly not in line with common sense. Therefore, without the appellant's knowledge of the joint corruption behavior of Huang and others, Huang, Wang, and Wu willingly handed over 30000 yuan in cash to the appellant. This is beyond reason and reason, and naturally, the money will not be distributed to the appellant.

In summary, the defender believes that the appellant did not intentionally engage in joint corruption subjectively, nor did he objectively engage in such behavior, which does not meet the behavioral characteristics and constitutive requirements of the crime of corruption stipulated in China's criminal law. The appellant, Hong, clearly does not constitute the crime of corruption.

Respected presiding judge, judge, esteemed court, esteemed court, not because you are law enforcers, but because the power you exercise is the judicial power conferred by the national law symbolized by the national emblem behind you. This judicial power is beyond nature and sacred. The right or wrong of your judgment is directly related to the fairness of the application of the law, the innocence of the appellant, and the confidence in Chinese justice. Therefore, the defender hopes that the second instance court, based on the principles of independent trial and necessary correction, will revoke the first instance judgment in accordance with the law and directly acquit the appellant, in order to demonstrate judicial fairness and win the hearts of the people.

Speech completed, thank you!

Defender: Zhejiang Liqun Law Firm

Lawyer Huang Daojin

January 8, 2014