问题 问答题

被告人李某,男,37岁,某劳动局财务科出纳员。1997年11月,某市人民政府委托建设银行发行该市奖券,每张奖券为30元,中奖者一等奖奖金为5万元,二等奖奖金为3万元,单位和个人均可购买。购买时不留印鉴,买后不挂失,并要求开奖后头一天,各单位必须将本单位购买的奖券全部封存登记。该劳动局代职工买了一部分奖券之后,部分职工不愿意买,因此,财务科又将这部分奖券原价收回,作为本单位购买的奖券,委托李某保管,但没有封存登记。1998年11月,中奖号码公布之后,被告人李某发现自己负责保管的单位奖券中有一张中了二等奖。李某将没有中奖的自己的奖券替换了这张已经中奖的单位奖券。由于该奖券由劳动局统一从某职工手中回购所得,因此,劳动局职工很快知道了本单位有一张奖券中了二等奖,但李某保管的奖券中却并没有中二等奖的奖券。李某因害怕而不敢去银行兑换奖金。后单位领导找李某谈话,李某觉得不妙,主动将该奖券交给局领导,并承认了自己偷换奖券的事实。

问:李某的行为是否构成犯罪?如果构成犯罪,应该如何定罪量刑?说明理由。

答案

参考答案:

李某构成贪污罪。贪污罪是指国家工作人员利用职务上的便利,侵吞、窃取、骗取或者以其他手段非法占有公共财物的行为。在本案中,李某是在国家机关从事公务的人员,利用职务的便利,非法占有其单位所有的公共财物,数额较大,达到3万元,符合贪污罪的构成要件,成立贪污罪。

(1)李某属于贪污中止。犯罪中止是指在犯罪过程中,行为人自动放弃犯罪或者自动有效地防止犯罪结果的发生,因而没有完成犯罪的犯罪停止形态。在本案中,李某侵占了单位的奖券,必须到银行兑奖后,其犯罪行为才会完成。在犯罪的过程中,李某自动放弃犯罪,并将奖券返还给单位,符合犯罪中止的条件,故属于贪污中止。

(2)李某有自首情节。自首是指犯罪分子在犯罪后自动归案,并如实交代自己犯罪行为的行为。在本案中李某在犯贪污罪之后,主动向有关单位领导投案,并且如实交代了自己偷换奖券的事实,符合自首的成立条件。根据我国《刑法》的规定,犯罪中止的,如果没有造成损害的,应当免除处罚;犯罪分子自首的,可以从轻或者减轻处罚;犯罪较轻的,可以免除处罚。所以,在本案中,李某的行为没有造成损害,并且属于犯罪较轻的情形,所以,对于李某应当免除处罚。 民学法

选择题
阅读理解

I know it is wrong to envy your children. But when I see my son, Tonio and his younger brother Sam going down a slide together, one’s arm around the other, I know I have missed something wonderful.

Not only did I never have a brother, but also I had no friendships like theirs. My sister was old enough to help take care of me, so she was more a mother than a playmate, and I was more a pest than a friend. A brother would have been wonderful, but it was not in the family planning.

Now I finally live with brothers, my sons, Tonio and Sam. I am watching them build the kind of relationship that I once dreamed about. They go to bed together. When one comes into our bed after a nightmare, my wife and I know that before morning his brother will follow.

Sam manages the world with more ease than his elder brother, whose frustrations often bring him to tears. With a sincere “Smile, Tonio,” Sam is the one who comforts him. Tonio, on the other hand, has stopped playing with boys at his age who don’t like playing with Sam. They are always backing each other up.

I don’t know what kind of relationship they will have when they grow up. Parents always want their children to have what they never could. I want them to have each other. So I imagine them going to the same college, marrying sisters and living on the same block.

That’s why I was so worried the day Tonio started kindergarten. I felt that I would lose something too. As we headed for school that morning, both boys seemed relaxed, as if neither had any idea that the day was going to be different, that starting then, Tonio would be leaving behind his brother, his best friend, his right arm.

Tonio’s first day was chaotic, with hundreds of children outside looking for their teachers. Before any of us could say goodbye, Tonio disappeared with his new classmates. He turned to wave and then was gone. It was so sudden. Sam even didn’ t see him go. Although parents had been asked to ease the craziness of the first day by statying out of the school, I lifted Sam up and took him to Tonio’s classroom, looking for a glimpse of Tonio. Sam spotted him first.

My wife and I didn’t head back home immediately, stopping instead at a coffee shop to treat Sam to hot chocolate. We even let him eat ice-cream with his fingers. Sam was still quiet, so I asked him if he missed his brother already.

He didn’t answer. Instead he asked, “Daddy, is Tonio going to be gone forever?”

“No, Sammy,” I said, feeling happy about his sweet question. “Not forever, just until three o’clock.”

I sometimes think that the greatest thing I have ever done is to help create these brothers. And I didn’t stop with them. We had another child, and for the third time in a row, it was a boy. It wasn’t long before his brothers climbed into the crib(婴儿床) to play with him. I am surrounded by brothers.

小题1:What makes the author envy his sons?

A.He has no friends like Sam and Tonio.

B.He has only one brother in his family.

C.He doesn’t enjoy brotherhood as they do.

D.He doesn’t have a good relation with his sister.小题2:What does the underlined word “pest” in paragraph 2 mean?

A.a bad person

B.an annoying person

C.a good companion

D.a lovely brother小题3:What can we learn about the two little brothers?

A.Tonio often encouraged Sam when Sam burst into tears.

B.The two brothers went to the same kindergarten.

C.Neither of the brothers played with other children.

D.They supported each other in different ways.小题4:The author was worried the day Tonio started his kindergarten, because__________.

A.Tonio might not spend so much time with Sam

B.Tonio might not do well with his study

C.he was afraid he would lose Tonio forever.

D.he wanted Tonio to have what he didn’t have小题5:On the first day of the kindergarten, __________.

A.Tonio had a nice day playing with his new classmates

B.Sam was very sad because Tonio was gone forever

C.Sam was allowed to have ice-cream with fingers as usual

D.the father felt happy when he sensed Sam’s love to Tonio小题6:What does the title “Surrounded by Brothers” suggest?

A.The author experienced brotherly affection by raising his sons.

B.The author often plays with his sons whenever he has time.

C.Parents want their children to stay at home and play together.

D.The youngest son is always surrounded by his elder brothers.