村干部挪用型犯罪司法惩处的乱与治——以H省为例

Disorder and treatment of judicial punishment about the rural cadres' embezzlement crimes:Taken H province as an example

基于某省2008—2012年247件村干部挪用征地补偿款犯罪案件的分析表明:村干部主体身份和挪用款项的复杂性,导致挪用公款罪与挪用资金罪界定模糊;被挪用款项主要用于自己或他人购买股票、收取高息、购买房屋、做生意等,挪用人与用款人多为直系亲属且用款人被追诉的极少。村干部挪用型犯罪的司法惩处乱象主要表现为公共事务与村集体事务管理之间界定模糊、征地补偿款是公款还是资金界定混乱、量刑畸轻而且罪刑倒挂、控辩审三方对案件定性分歧大。应基于管理职能界定村干部是否具国家工作人员身份,基于被挪用款项性质界定犯罪性质,以犯罪数额为主要依据予以恰当量刑。

According to the analysis of 247 cases of rural cadres misappropriated compensation of land in a certain province during 2008-2012,it is found out that the complex of the identity of rural cadre and the properties of fund misappropriated in the judicial practice led to the vague definition between misappropriation of funds and embezzlement, the misappropriated funds was mainly used for the purchase of stock, charge high interest, purchase of houses, doing business; misappropriating person and the person using the fund are immediate relatives, and the latter were rarely prosecuted. The analysis showed that the disorder of judicial punishment presented as following： mistiness of the public affairs and the village affairs, confused definition of the nature of the land acquisition compensation, lighter sentencing and the upside-down of crime and punishment, great difference among prosecuting party, defending party and judicial organ. Hence the paper proposed some suggestions： to make sure that the rural cadres have identity of functionary in the state organ, to define the crime nature according to the fund feature, to measure the penalty according to the amount of crime.