【最新2018】(201X)沪二中刑终字第487号-范文模板 (2页)

【最新2018】(201X)沪二中刑终字第487号-范文模板 (2页)

【最新2018】(201X)沪二中刑终字第487号-范文模板

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(201X)沪二中刑终字第487号

上海市第二中级人民法院

刑事裁定书

(201X)沪二中刑终字第487号

原公诉机关上海市静安区人民检察院。

上诉人(原审被告人)黄甲。

上海市静安区人民法院审理上海市静安区人民检察院指控被告人黄甲犯挪用资金罪一案,于二○○九年六月十七日作出(201X)静刑初字第176号刑

事判决。被告人黄甲不服,提出上诉。本院依法组成合议庭,公开开庭审理了

本案。上海市人民检察院第二分院指派代理检察员张亮出庭履行职务。上诉人(原审被告人)黄甲到庭参加诉讼。现已审理终结。

上海市静安区人民法院判决认定,被告人黄甲于201X年4月至12月,在担任上海理辰商务信息咨询有限公司(以下简称“理辰公司”)法定代表人、

总经理期间,利用负责保管公司现金支票及提取现金的职务便利,采用私自填

写支票并加盖公司财务专用章的手法,先后十六次从理辰公司上海浦东发展银

行的账户内提取现金人民币43.8万元。被告人黄甲还于201X年8月至12月,利用负责管理理辰公司收取外汇的中国银行账户的职务便利,先后十余次从该

帐户内提取12,061.02欧元。被挪用款项均用于赌博。

原审法院认定以上事实的证据有,理辰公司报案材料、工商资料、职务证明、银行存款日记账、收支明细材料、上海浦东发展银行提供的对账单、

支票、中国银行提供的交易明细及相关凭证等书证,证人管甲、管乙、李某、

黄乙、徐某某、顾某某等人的证言、被告人黄甲的供述等。

上海市静安区人民法院认为,被告人黄甲身为公司工作人员,利用职务上的便利,挪用本单位资金进行非法活动,数额巨大,其行为已构成挪用资

金罪,应依法追究其刑事责任。被告人黄甲能如实供述犯罪事实,可酌情从轻

处罚。据此,依照《中华人民共和国刑法》第二百七十二条第一款和第六十四

条之规定,对被告人黄甲犯挪用资金罪,判处有期徒刑四年;追缴被告人黄甲

赃款发还被害单位上海理辰商务信息咨询有限公司。

黄甲上诉提出其曾努力退赔挪用的公司钱款,且认罪态度较好,要求从轻处罚。

上海市人民检察院第二分院认为,经向被害单位了解被告人黄甲并未退还其挪用的钱款。原审法院根据被告人黄甲犯罪的相关情节已作出了从轻处罚。建议本院驳回上诉,维持原判。

经审理查明,原审法院判决认定被告人黄甲在担任理辰公司总经理期间,于201X年4月至12月间,挪用本单位公款人民币43.8万元、欧元

12,061.02元用于赌博的事实清楚,证据确实、充分,应予确认。

被告人黄甲挪用理辰公司资金人民币43.8万元、欧元12,061.02元

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