Wang was detained on January 9, 2021 on suspicion of theft. On July 8, 2021, the procuratorate filed a public prosecution with the court, accusing Wang of being a construction worker of a project department of the company and responsible for supervising the construction of the labor company. Between October 2020 and December 2021, Wang stole construction materials purchased by the project department six times. The specific facts of the crime are as follows: On October 11 of the same year, Wang sold the remaining construction materials of the project department to Zhang San for a profit of 1,100 yuanOn October 16, Wang sold the remaining construction materials of the project department to Zhang San for a profit of 4,000 yuanOn October 24, Wang sold a batch of remaining construction materials of the project department to Zhang San. Profit 3000 Yuan On November 15, Wang sold the remaining construction materials on the site to Zhang San for a profit of 6200 Yuan On December 7, Wang sold the new and unopened construction materials on the site to Zhang San for a profit of 7500 Yuan On December 27, Wang sold a batch of new materials on the site to Zhang San again, making a profit of 7300 yuan. Because the stolen construction materials have been lost, and the brand, quantity, weight and purchase time cannot be determined, the ** identification center cannot conduct ** assessment of the construction materials, and does not accept the ** assessment commission of the public security organ. The procuratorate determined the amount of theft based on the amount of Wang's actual profits, prosecuted Wang for constituting the crime of theft, and recommended that Wang be sentenced to two years and six months in prison. Wang's defender believes that Wang used his position to facilitate theft, constituting the crime of embezzlement. The court of first instance found Wang guilty of theft and sentenced him to one year and ten months in prison and a fine of 30,000 yuan, with the term of imprisonment from January 19, 2020 to November 18, 2022. Wang appealed. The court of second instance remanded for a new trial on the grounds that the facts of the original judgment were unclear and the evidence was insufficient. After remanding for retrial, the public security organs successively supplemented the assessment report on the fifth and sixth cases of stolen construction materials alleged in the original indictment, and determined that the value of the stolen construction materials was 750,000 yuan. Accordingly, the procuratorate changed the indictment and recommended that Wang be sentenced to five years in prison for theft. Main issue: Whether it constitutes theft or embezzlement of office for Wang is not stated for the time being, and whether the sentencing recommendation for Wang to be changed to five years imprisonment after the procuratorate changes the indictment violates the principle of non-increase of sentence on appeal? What should the trial court do? 
1. What is the principle of no increase in sentence on appeal? According to article 237 of the Criminal Procedure Law, "the second-instance people's court hearing an appeal from the defendant or his legally-designated person, defender, or close relatives shall not increase the defendant's punishment. In cases where the second-instance people's court remands the case to the original people's court for new trial, the original people's court must not increase the defendant's punishment except where there are new facts of the crime and the people's procuratorate supplements the prosecution. Where the people's procuratorate raises a prosecutorial counter-appeal or the private prosecutor submits an appeal, the restrictions of the preceding paragraph are not to be applied." Article 403 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" stipulates that "in cases where the defendant or his legally-designated person, defender, or close relatives file an appeal, but the people's procuratorate does not raise a prosecutorial counter-appeal, after the second-instance people's court remands for new trial, the original trial court shall not increase the defendant's punishment unless there are new facts of the crime and the people's procuratorate supplements the prosecution." In cases provided for in the preceding paragraph, where after the original people's court makes a judgment in accordance with law in a case remanded for new trial on appeal, and the people's procuratorate raises a prosecutorial counter-appeal, the second-instance trial court must not change the judgment to a heavier punishment than the first sentence imposed by the original people's court." It can be seen that the principle of not increasing the sentence on appeal includes two situations: one is that in cases where the defendant appeals and the people's procuratorate does not raise a prosecutorial counter-appeal, the court of second instance must not directly change the judgment and increase the punishment; Another circumstance is that in cases remanded for retrial by the court of second instance, the punishment must not be increased unless there are new facts of the crime and the people's procuratorate supplements the prosecution. 2. The two ** determinations resubmitted by the procuratorate in this case increased the amount of theft, so does the increase in the amount of theft belong to "having new criminal facts"? We compared the contents of the People's Procuratorate's "Indictment" and the "Decision to Change the Indictment", and found that the two ** determinations only changed the "amount" of the fifth and sixth cases charged in the original "Indictment", and the facts of the two crimes did not change. Referring to the authoritative interpretation article of the Criminal Law Office of the Legislative Affairs Commission of the Standing Committee of the National People's Congress on the "Principle of Not Increasing the Sentence on Appeal and Its Limitations" and the Criminal Trial Reference Case No. 1025 to understand the "new criminal facts" in "no increase in sentence on appeal", it is held that "new criminal facts" refer to the discovery by the original trial court or procuratorate of new criminal facts other than the crimes indicted in the first instance, and only include new criminal facts other than the original alleged crimes. The procuratorate adds new facts of the crime to the original charge, and does not include the addition of new evidence without changing the original charge. "New facts of the crime" do not include facts alleged by the procuratorate that were not previously determined by the original trial court, nor do they include evidence newly supplemented by the procuratorate on the basis of the original crime, and the new evidence supplemented by the procuratorate is only to make the facts of the original alleged crime clearer, credible and sufficient, and should be understood more as evidence at the sentencing level. 
It is precisely because of this that in this case, the People's Procuratorate's "Decision to Change the Indictment" only adjusted the amount of "theft" on the basis of the fifth and sixth cases of "theft" first charged in the original "Indictment", and the two ** determinations were used as new evidence to adjust the amount of "theft", and the fact of "theft" itself has not changed, and there is no situation of "new criminal facts". The procuratorate held that the increase in the amount stolen after the remand for retrial was a new change in the facts of the crime, and did not fall within the scope of being limited by the principle of not increasing the sentence on appeal. Obviously, this view is wrong, and "new changes in the facts of the crime" are different concepts from "there are new facts of the crime". When there is a new change in the facts of the crime, it may be a change in the evidence, or it may be a change in understanding and understanding, but it is just a new understanding of the original facts. The presence of new criminal facts refers to the discovery of a crime omitted or the commission of a new crime, which goes beyond the scope of the original criminal facts, simply put, the addition of "criminal facts". In addition, according to article 423 of the Criminal Procedure Rules of the People's Procuratorate, before the people's court announces the verdict, the people's procuratorate may change the indictment if it discovers that the defendant's true identity or the facts of the crime are inconsistent with the identity or alleged facts of the crime described in the indictment, or if the facts and evidence have not changed, but the charges and applicable law are inconsistent with the indictment. Where it is discovered that criminal suspects or crimes in the same case have been omitted, they shall request that the public security organs supplement the transfer for prosecution or supplemental investigation; Where the facts of the crime are clear and the evidence is credible and sufficient, the prosecution may be directly supplemented or supplemented. Referring to the "Guidelines for the Application of Criminal Procedure Legal Documents of the People's Procuratorate" published by the China Procuratorate Publishing House, when there is an omission of a crime or a new criminal fact, a "supplementary indictment" is required, and there is no omission or new criminal fact, but only an adjustment to the original alleged criminal facts in the determination (mostly at the level of understanding and cognition), and a "change of prosecution" is required. In this case, the People's Procuratorate used the Amended Indictment to adjust the amount of the fifth and sixth cases of "theft" charged in the original Indictment, but did not use the Supplementary Indictment to make adjustments, which also shows that the People's Procuratorate did not "supplement the indictment" on the basis of "new criminal facts". 
III. In the face of the procuratorate's five-year sentencing recommendation, how should the retrial court handle Wang's sentence in the original trial had already expired when the case was not concluded? In cases where only the defendant Wang appealed in the original trial of this case, and the procuratorate did not raise a protest and was remanded for retrial by the court of second instance, article 237 of the Criminal Procedure Law and article 403 of the "Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of the People's Republic of China" on "the restriction of the principle of not increasing the sentence on appeal" shall apply. Although the procuratorate recommended a new sentence of five years imprisonment for Wang, it was impossible for the original trial court to increase the sentence of Wang, so Wang's original sentence of one year and ten months in prison expired on November 18, 2022, and according to Article 170, Paragraph 3 of the "Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of the People's Republic of China", "where the time the defendant was detained has reached the time limit of the sentence imposed on him by the first-instance court", the original trial court should immediately release Wang. Wang's defender reminded him that the original trial court's release of Wang on bail pending trial in December 2022 was correct, and his self-correction performance can be praised. The principle of not increasing the sentence on appeal is aimed at ensuring that the defendant will implement the right to appeal in accordance with the law, preventing the defendant from not daring to appeal for fear that he may be sentenced to higher punishment after appealing, and ensuring that the appeal system becomes a fictitious system, which has important procedural value for encouraging the defendant to appeal fully and without scruples, improving the quality of the trial, and providing special protection for the defendant. Author: Xu Xiaoyun, Senior Partner and Director of the Criminal Department of Shaanxi Xu Xiaoping Law Firm, January 2, 2022.