Crime of misappropriation of funds & crime of embezzlement
In the anti-corruption case reports, we often see "crime of misappropriation of funds" and "crime of embezzlement of position". Today, the editor will tell you how these two crimes are stipulated, what they include, and the boundaries between the two.
01
What is the crime of misappropriation of funds
Article 272 of the Criminal Law stipulates:
A staff member of a company, enterprise or other unit, taking advantage of his position, misappropriates the funds of his own unit for personal use or lends it to others, and the amount is relatively large and has not been repaid for more than three months, or although it has not exceeded three months, the amount Those who are relatively large, carry out profit-making activities, or conduct illegal activities shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; those who misappropriate a huge amount of funds from their own units shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the amount is particularly huge, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. imprisonment.
02
The crime of misappropriation of funds includes three situations
1. Misappropriation of the unit's funds for personal use or loan to others, the amount is relatively large, and it has not been repaid for more than three months; but it is not used for profit or illegal activities. 2. Misappropriation of the unit's funds for personal use or loan to others, the amount is relatively large, for profit-making activities. The so-called "profit-making activities" mainly refer to conducting business, investing, purchasing stocks or bonds, etc. There is no provision for the duration of misappropriation in this act.
3. Misappropriating the funds of the unit for personal use or lending to others to carry out illegal activities. The so-called "illegal activities", such as the use of misappropriated funds for smuggling, gambling and other activities. As long as the perpetrator has one of the above three behaviors, it can constitute the crime of misappropriation of funds, and it is not necessary to have both.
What is the crime of embezzlement
Article 271 of the "Criminal Law" stipulates that: A staff member of a company, enterprise or other unit who takes advantage of his position to illegally appropriate the property of his unit as his own, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or Criminal detention shall be sentenced to a fine; if the amount involved is huge, the sentence shall be fixed-term imprisonment of not less than three years but not more than 10 years, and a fine shall be imposed; if the amount is particularly huge, the sentence shall be fixed-term imprisonment of not less than ten years or life imprisonment, and a fine.
04
Three methods of illegal possession
The act of embezzlement. "Misappropriation" means that the perpetrator takes advantage of his position to directly appropriate the property of his own unit that he manages, handles, and uses.
Stealing illegal possession. Refers to the behavior of the perpetrator taking advantage of his position and stealing secretly to illegally occupy the property of the unit. Generally speaking, on the premise of the perpetrator's legal management of the property of the unit, guarding and stealing is the most typical one.
Fraudulent illegal possession. Refers to the behavior of the perpetrator taking advantage of his position, using fictitious facts, concealing the truth, and illegally occupying the property of the unit. For example, purchase and sales personnel forged and altered documents to claim property, and business travel personnel falsely reported travel expenses.
The limits of the crime of misappropriation of funds and the crime of embezzlement
1. The object and object of the violation are different
The object infringed by the crime of misappropriation of funds is the right to use the funds of a company, enterprise or other unit, and the object is the funds of the company, enterprise or other unit, and only refers to money; Ownership, the object is the property of a company, enterprise or other unit, including both money and things.
2, the objective performance is different
The behavior of the crime of misappropriation of funds is misappropriation, that is, without legal approval or permission, it is appropriated for their own use or loaned to others; Or illegally occupy the property of the unit by other means. The misappropriation of funds of the unit for illegal activities does not require a "large amount" to constitute a crime; the crime of occupational embezzlement can only be constituted by embezzling the property of the unit in a relatively large amount.
3. Subjective aspects are different
The purpose of the crime of misappropriation of funds is to illegally obtain the right to use the funds of the unit, but it is not an attempt to illegally occupy it permanently, but to return it after use. rather than temporarily.
"Integrity" is a noble quality of human beings, while "greed" is the fatal weakness of human nature. Only by being honest and self-righteous and sticking to the bottom line of the profession can we calmly face the complex social environment.
