The dereliction of duty case of Lu ×××

I. Case Reason: Negligence of Duty Case of Lu XX

In the first instance, the defendant Lu XX was convicted of negligence of duty and sentenced to one year in prison with a one-year probation; the defendant appealed, and after a legal review by the second instance court, the original verdict was overturned, and the defendant was acquitted.

II. Brief Summary of the Case

In June 2003, Lu XX joined the XX County Water Resources Bureau as the Party Secretary and Director, in charge of finance, and decided to merge the finances of the bureau's subordinate water management station and hydropower management station for unified accounting and management. The XX County small hydropower management fee continued to be collected by the accountant of the small hydropower management station of the county water resources bureau.

In early 2004, Lu XX asked Chen XX, the bureau's accounting clerk, to allocate the 2003 hydropower management fee from the county's finance comprehensive planning section. However, he was told that because Zhou X, the accountant of the small hydropower management station, had not written off the 2003 receipts, the financial special account of the hydropower management station could not be merged, and the balance of 290,000 yuan in the original financial special account of the hydropower management station could not be withdrawn. After Chen XX reported this to Lu XX, Lu XX asked Chen XX to repeatedly urge Zhou X to pay, but Zhou X repeatedly refused. Later, Lu XX personally urged Zhou X to pay without result.

In June 2004, Lu XX contacted the comprehensive planning section of the county finance bureau again on the matter of merging special accounts. The comprehensive planning section of the county finance bureau still refused on the grounds that Zhou X's payment had not been settled. At the same time, Zhou X embezzled another 95,000 yuan from the collected small hydropower fees to pay for his son's wedding house. In December 2004, Song Bo, the station director of the small hydropower management station, showed Lu XX a "2004 Statement of Collection of County External Network Small Hydropower Management Fees," showing that more than 850,000 yuan in hydropower management fees had been collected in 2004. After Lu XX asked Chen XX to check the accounts, he found that Zhou X had failed to turn in more than 450,000 yuan, so he continued to urge payment, giving Zhou X one week to settle the accounts, but Zhou X easily got away with it by claiming that "the money for two more invoices has not been collected." By this time, Zhou X had embezzled more than 520,000 yuan of hydropower management fees in 2004.

At this time, the county water resources bureau was urged by higher authorities to pay the provincial and municipal hydropower management fees because it had no money in its financial special account. On January 6, 2005, Lu XX instructed Chen XX to transfer 100,000 yuan from the "Three-item Planning Use Fee" special funds to settle the provincial financial special account. To make up for the transferred special funds, Lu XX personally went to the comprehensive planning section of the county finance bureau to request the allocation of the 290,000 yuan hydropower management fee withheld in 2003, and guaranteed to settle Zhou X's outstanding payments. After receiving a letter from the county water resources bureau, the comprehensive planning section of the county finance bureau agreed to the request of the water resources bureau. After that, Lu XX only verbally urged Zhou X to pay by himself and the financial staff.

In the first quarter of 2005, Zhou X embezzled another 140,000 yuan of public funds. It was not until the end of April 2005 that Lu XX asked Chen XX to check accounts with Zhou X when Zhou X was still unable to settle his accounts. By this time, Zhou X had embezzled more than 1.13 million yuan in public funds. Later, Lu XX took measures to hand Zhou X over to the disciplinary inspection organs for processing.

III. Focus of the Case

The focus of this case is whether Lu XX's actions constitute negligence of duty. This can be analyzed through several key questions:

1. Did Lu XX know about Zhou X's embezzlement of public funds?

2. Did Lu XX take normal management measures regarding Zhou X's embezzlement of public funds? 3. Did Lu XX's actions constitute negligence of duty?

IV. Disputes and Differences of Opinion

The procuratorial organs argued in the indictment that Lu XX, as a state organ staff member, was seriously irresponsible, did not properly perform his duties, causing major losses to state property, and his actions violated the provisions of Article 397 of the Criminal Law of the People's Republic of China, constituting negligence of duty.

The first-instance defense lawyer argued that the defendant Lu XX did not constitute negligence of duty. From an objective perspective, after Lu XX became director of the XX County Water Resources Bureau, he fully presided over the work, supervised the financial work, formulated a series of relevant financial systems, and in this case also instructed the office and the hydropower management station to urge Zhou X to settle the payments with the county finance bureau, and simultaneously requested a clarification of the amount of collected and unpaid funds; at the same time, he required Zhou X to settle the payments within a time limit, and sent people to supervise, until Zhou X was transferred to the organization for processing. Subjectively, negligence of duty involves negligence or overconfidence, but in this case, because Zhou X's deception was sophisticated within the Water Resources Bureau and the management station, the reasons given for delaying payment were highly believable, making detection difficult. Lu XX is not a professional accounting worker, nor does he have relevant accounting experience, so failing to identify Zhou X's actions in time is not negligence, but a lack of the necessary elements to identify them.

The first-instance court held that after Lu XX discovered in early 2004 that Zhou X's payments were inconsistent, leading to the inability to open an account, he did take some measures, but these measures were not commensurate with the severity and urgency of the actual situation. In the matter of transferring special funds at the end of 2004 to pay management fees to the provincial department, the measures taken by Lu XX were clearly inadequate. Whether it should have been foreseen is the core of whether negligence was established. From Lu XX's discovery that Zhou X had not settled the accounts to the time of the incident, more than a year had passed. By the end of 2004, Lu XX already knew that the amount of Zhou X's inconsistent payments was huge, clearly suggesting a serious suspicion. Even when he knew that this had caused an inability to open an account and the need to use special funds to fill the gap, his failure to foresee it was gross negligence. Zhou X's successful embezzlement of a large amount of public funds for a long time without being discovered was caused by a combination of factors, and Lu XX's role in this was irreplaceable. It was precisely because of Lu XX's dereliction of duty that Zhou's embezzlement continued, causing losses to continuously expand, and the causal relationship during this period has a causal relationship in the sense of criminal law.

The second-instance defense counsel argued that in the constituent elements of the crime of negligence of duty, the perpetrator must have violated his or her duties, that is, the perpetrator must have violated a specific obligation first. First, from a subjective point of view, when Lu XX learned that Zhou X's payment was unclear, the measures taken to urge payment fully fulfilled his duties and did not violate any laws or work regulations. From an objective point of view, the collection of hydropower management fees has always had a certain degree of difficulty, and the backlog of management fees is a common phenomenon during the collection process. Therefore, before the incident, even Zhou X's direct supervisor, the bureau's financial personnel, and the financial personnel of the county finance comprehensive section could not have foreseen Zhou's embezzlement of public funds, let alone Lu XX, who was not a professional financial worker and had no financial work experience. Secondly, Zhou X's criminal methods were covert and disguised, and the reasons given were also highly believable. From Lu XX's ability to identify and foresee, he did not subjectively constitute negligence. Third, there were multiple reasons for Zhou X's successful embezzlement of public funds, mainly including the failure to implement "management by invoice, verification of old and new invoices" in financial voucher management, related defects in the financial management system, and irregular multi-account opening by financial institutions. In summary, Lu XX's actions were administrative negligence, and did not constitute the crime of negligence of duty in the sense of criminal law.

The second instance court, after hearing the case, held that: The crime of negligence of duty refers to the act of a state organ staff member who is seriously irresponsible, fails to perform or improperly performs their duties, resulting in significant losses to public property, state and people's interests. As a crime of dereliction of duty, the objective aspect of the crime of negligence of duty is manifested in violating the duties stipulated in laws, work discipline and regulations, and causing significant losses. This is also an important objective basis for determining whether a person is seriously irresponsible, fails to perform or improperly performs their duties. In this case, the XX County Water Resources Bureau has clear division of work functions for each station and office, and also has specific responsibility system assessment methods. Lu XX, as the director of the Water Resources Bureau and in charge of financial work, bears leadership responsibility for the financial management of his unit. At the beginning of 2004, Lu XX learned that due to the failure of Zhou X, the accountant of the Hydropower Management Station, to verify the receipts for 2003, the fiscal special account of the Hydropower Management Station and the fiscal special account of the Water Resources Bureau could not be merged. While there were indeed situations of lax management and ineffective measures, this did not constitute a violation of laws, work discipline, or regulations. Lu XX also fulfilled relevant responsibilities, such as instructing the director of the Water Resources Office, the accountant, and the director of the Hydropower Management Station to urge Zhou X to settle the payment, inquiring about the collection of management fees, and personally urging Zhou X on multiple occasions. In April 2004, after Zhou X still failed to settle the payment and absconded, Lu XX mobilized Zhou X to return through Zhou's relatives, asked the bureau's financial personnel to reconcile accounts with Zhou X, and then handed Zhou X over to the disciplinary inspection department for processing. A comprehensive review of Lu XX's performance of duties does not constitute seriously irresponsible behavior, failure to perform or improper performance of duties. In determining guilt and non-guilt, the circumstances are insignificant and do not constitute a crime according to law.

V. Conclusion

We believe that, according to Article 397 of the Criminal Law of China and its judicial interpretations, the crime of negligence of duty refers to the act of a state organ staff member who is seriously irresponsible, fails to perform or improperly performs their work duties, resulting in significant losses to public property, state and people's interests. The objective aspect of this crime is manifested in the act of a state organ staff member violating work discipline and regulations, absenting themselves from their posts, failing to fulfill their duties, or improperly performing their duties, resulting in significant losses to public property, state and people's interests. Specifically, this includes: 1. There must be an act of violating state work discipline and regulations, negligence of duty, including acts of commission and omission;
2. There must be a result of negligence of duty resulting in significant losses to public property, state and people's interests;
3. There must be a causal relationship under criminal law between the act of negligence of duty and the resulting significant losses.

In handling cases of negligence of duty, it is necessary to grasp the boundary between the crime of negligence of duty and work errors, as work errors will often cause significant losses to the interests of the state and the people, which is the same as this crime in this respect. However, there is a strict distinction between the two:
(1) Different objective behavioral characteristics. In work errors, the actor diligently performs their duties; while the crime of negligence of duty is manifested in the actor's failure to perform or improper performance of their duties.
(2) Different causes leading to the occurrence of harmful consequences. Work errors are due to imperfect systems, unclear boundaries of specific policies, shortcomings in management, and the low cultural level, poor professional skills, and lack of work experience of state functionaries, resulting in poor planning, inappropriate measures, and incorrect methods, leading to errors in active work and causing significant losses to the interests of the state and the people. The crime of negligence of duty, however, is caused by violations of work discipline and regulations, serious bureaucratism, and extremely irresponsible attitudes towards work, resulting in significant losses to the interests of the state and the people. In the current process of economic reform, opening up to the outside world, and invigorating the domestic economy, some errors are inevitable, causing some serious losses. This is mainly a matter of summarizing lessons learned and must be strictly distinguished from the crime of negligence of duty.

In this case, the XX County Water Resources Bureau has specific regulations on the work functions of each station and office. Lu XX, as the director of the Water Resources Bureau and in charge of financial work, bears leadership responsibility for the financial management of his unit. At the beginning of 2004, Lu XX learned that due to Zhou X's failure to verify the receipts for 2003, the fiscal special account of the Hydropower Management Station and the fiscal special account of the Water Resources Bureau could not be merged. Although there were some situations of lax management and ineffective measures, this did not violate the law, work discipline, or the unit's regulations. Lu XX also fulfilled relevant responsibilities, such as instructing relevant personnel such as the director of the Water Resources Office, the accountant, and the director of the Hydropower Management Station to urge Zhou X to settle the payment, inquiring about the collection of management fees, and personally urging Zhou X on multiple occasions. After the incident, after Zhou X still failed to settle the payment and absconded, Lu XX mobilized Zhou X to return through Zhou's relatives, asked the bureau's financial personnel to reconcile accounts with Zhou X, and then handed Zhou X over to the disciplinary inspection department for processing. A comprehensive review of Lu XX's performance of duties does not constitute seriously irresponsible behavior, failure to perform or improper performance of duties. It was an administrative error and does not constitute the crime of negligence of duty in the sense of criminal law.