The difference between embezzlement and theft

There are two crimes of embezzlement and theft in the criminal law of our country. The crime of embezzlement and the crime of theft are both for the purpose of illegal possession. This is the same criminal motive for the two crimes. So the crime of embezzlement and the crime of theft are the same. What is the difference between theft? How should the crime of embezzlement and theft be sentenced? Let me answer it for the readers below.

1. The difference between the crime of embezzlement and theft The crime of embezzlement refers to the illegal possession of property, forgotten objects or buried objects entrusted to oneself by others for the purpose of illegal possession, and the amount is relatively large. , the act of refusing to return it. The crime of theft refers to the act of stealing a relatively large amount of property owned by others for the purpose of illegal possession, or committing multiple thefts. The crime of embezzlement and the crime of theft are both crimes against property. They are similar in many aspects. For example, the objects of the infringement are both public and private property ownership. In terms of the objective aspects of the crime, neither violence nor the threat of violence is used as a means of conduct. It is required that the seriousness of the circumstances, especially the relatively large amount of illegal possession of property, be used as the criterion for distinguishing crime from non-crime. In terms of the subjective aspect of the crime, it is directly intentional and has the purpose of illegally possessing other people's property. But there are still many differences between the crime of embezzlement and the crime of theft. Grasping these differences is of great significance in delineating the boundaries between the two. The objects of crime are different. The object of the crime of misappropriation is limited to other people's property or other people's forgotten or buried things kept by the perpetrator. The perpetrator has already possessed other people's property before committing the act of embezzlement; and the crime of theft is limited to movable property held by others. The perpetrator did not possess other people's property before committing the theft. That is, the object of the crime of embezzlement is "other people's property held by oneself", and the object of the crime of theft is "other people's property held by others". The objective aspects of crime behave differently. When the crime of embezzlement involves illegal possession of property, the possessed property is already in the possession and control of the perpetrator, and the perpetrator only needs to use deception, denial and other means to turn the possession into illegal possession. The means of the crime of embezzlement can be secret, public or semi-public; and for the crime of theft, before the property is illegally obtained, the property is not under one's actual control, and the perpetrator must use secret theft to achieve the illegal purpose. Possession. To constitute the crime of embezzlement, in addition to a relatively large amount, it also requires a refusal to return or hand over the property; and for the crime of illegal possession of other people's property, as long as the amount is relatively large or there are other serious circumstances, such as multiple thefts, even if the crime is not Large amounts can also constitute a crime. Even if someone steals someone else's property and then returns it to someone else, it does not affect the establishment of the crime. The time at which criminal intent is formed varies. Since the crime of embezzlement is the transfer of other people's property that one has already held to one's own, the criminal intention usually occurs after holding other people's property. Under special circumstances, it may also be formed when holding other people's property; while the crime of theft is to transfer the property of others to one's own. The property of others that is not held or controlled by oneself is transferred to one's own, and the criminal intention can only arise before holding or controlling other people's property. Through the above analysis, it can be seen that the major difference between the two is that the former crime is a crime without transferring possession, while the latter crime is a crime of transferring possession. The basic feature of the crime of theft is to violate the will of the victim and use peaceful means to transfer property possessed by others to the possession of oneself or a third party. The basic feature of the crime of embezzlement is to transfer the property of others that is in one's possession to one's own, or to transfer the property of another that has been separated from the possession to one's own. Therefore, the key to distinguishing the crime of theft from the crime of embezzlement is to determine whether the property that is the object of the crime is out of possession and who takes possession of it.

2. Sentencing standards for embezzlement and theft crimes Sentencing for embezzlement crimes Article 270 of the Criminal Law to fixed-term imprisonment of not more than one year, criminal detention, or a fine; if the amount is huge or there are other serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years, and shall also be fined. Anyone who illegally takes possession of other people's forgotten or buried items, and the amount is relatively large, and refuses to hand it over, shall be punished in accordance with the provisions of the preceding paragraph. This crime will only be dealt with upon complaint. Sentencing for the crime of theft 1. Anyone who commits this crime shall be sentenced to fixed-term imprisonment of not more than 3 years, criminal detention or surveillance, and shall also or solely be fined. The so-called "large amount" refers to the theft of public and private property by individuals worth RMB 500 to more than RMB 2,000, according to the Interpretation. For stealing special value-added tax invoices or other invoices that can be used to defraud export tax refunds and tax deductions, the starting point for larger amounts is 25. In addition, according to Article 9, paragraph 1, of the "Interpretation", those who steal national third-level cultural relics shall also be sentenced according to this range, that is, they shall be sentenced to imprisonment of not more than 3 years, criminal detention or surveillance, and shall also or solely be fined. If a fine is imposed, according to Article 7 of the Interpretation, a fine should be imposed within 2 times the amount of theft of more than 1,000 yuan; for offenders who should be sentenced to a fine according to law, but there is no amount of theft or the amount of theft cannot be calculated, they should be fined within 1,000 yuan or less. A fine of not less than RMB 1,000 but not more than RMB 100,000 shall be imposed (the same below). 2. Anyone who commits this crime and the circumstances are serious shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years and a fine. The so-called serious circumstances refer to huge amounts or other serious circumstances. The so-called huge amount, according to the "Interpretation", refers to an individual's theft of public and private property worth more than 5,000 yuan to 20,000 yuan. The starting point for stealing special value-added tax invoices or other invoices that can be used to defraud export tax refunds and tax deductions is 250. Other serious circumstances refer to other serious circumstances other than huge amounts.

According to Article 6, Item 3 of the Interpretation, if the amount of theft reaches the starting point of "relatively large amount" and one of the following circumstances occurs, it may be determined as "other serious circumstances": (1) The ringleader of a criminal group or ***The principal culprit with serious circumstances in the same crime; (2) Theft from a financial institution; (3) Traveling to commit crimes that cause serious harm; (4) Repeat offender; (5) Causing death, mental disorder or other serious consequences to the victim; (6) ) Stealing funds and materials for disaster relief, emergency rescue, flood prevention, special care, poverty alleviation, immigration, relief, and medical care, causing serious consequences; (7) Stealing production materials, seriously affecting production; (8) Causing other major losses. In addition, according to the provisions of Article 9, paragraph 1, of the Interpretation, those who steal national second-level cultural relics shall also be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years according to this range, and shall also be fined. 3. Anyone who commits this crime and the circumstances are particularly serious shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have property confiscated. The circumstances are particularly serious, which refers to a particularly huge amount or other particularly serious circumstances. The so-called "extremely huge amount" refers to an individual's theft of public or private property worth RMB 30,000 to more than RMB 100,000, according to the Interpretation. For stealing special value-added tax invoices or other invoices that can be used to defraud export tax refunds or tax deductions, the starting point for particularly huge amounts is 2,500. Other particularly serious circumstances refer to other particularly serious circumstances other than particularly huge amounts. According to Item 3 of Article 6 of the "Interpretation" stipulates that if the amount of theft reaches the starting point of "huge amount" and one of the following circumstances occurs, it can be determined as "other particularly serious circumstances": (1) The ringleader of a criminal group or* **The principal culprit with serious circumstances in the same crime; (2) Theft from a financial institution; (3) Theft from committing crimes causing serious harm; (4) Repeat offender; (5) Causing death, mental disorder or other serious consequences to the victim; (6) Stealing funds and materials for disaster relief, emergency rescue, flood prevention, special care, poverty alleviation, immigration, relief, and medical care, causing serious consequences: (7) Stealing production materials, seriously affecting production; (8) Causing other major losses, in addition, according to the "Interpretation" "Article 9, paragraph 1, stipulates that those who steal national first-class cultural relics shall also be sentenced according to this range, that is, they shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and shall also be fined or have their property confiscated. 4. Whoever commits this crime and commits one of the following serious crimes: theft from a financial institution, a particularly huge amount, or theft of precious cultural relics, shall be sentenced to life imprisonment or death, and his property shall be confiscated. The so-called theft of financial institutions refers to the theft of operating funds, securities and customer funds of financial institutions, such as depositors' deposits, bonds, other money and property, and the settlement funds and stocks of enterprises. It does not include theft of office supplies and office supplies of financial institutions. Transportation and other property behavior. According to Paragraph 3 of Article 9 of the "Interpretation": "Theft of precious cultural relics with serious circumstances" mainly refers to the theft of national first-level cultural relics that causes damage, loss and irrecoverability; theft of more than three national second-level cultural relics or theft of national second-level cultural relics. 1 or more first-class cultural relics and one of the circumstances specified in Article 6, Item 3, Items 1, 3, 4 and 8 of the Interpretation. 5. In the crime of common theft, each prisoner committed a different criminal act based on the same intention and should be responsible for the harmful consequences caused by the same theft. When hearing criminal cases of rape and theft, each defendant shall be dealt with separately according to the specific circumstances of the case: (1) The ringleader of the criminal group shall be punished according to the total amount of theft by the group; (2) The crime of rape and theft shall be punished separately; Other principal offenders in the crime shall be punished according to the amount of theft they participated in or organized and directed. (3) The sentencing range for an accessory to a criminal crime shall be determined according to the amount of the theft in which he or she participated, and shall be given a lighter, reduced punishment or a lighter punishment in accordance with the provisions of paragraph 2 of Article 7 of this Law. Waiver of punishment. 6. Theft criminals who should be sentenced to a fine according to the law should be sentenced to a fine of less than twice the amount of the theft of more than 1,000 yuan; criminals who should be sentenced to a fine according to the law but there is no amount of theft or the amount of theft cannot be calculated should be fined 1,000 yuan or more. A fine of not less than RMB 100,000 but not more than RMB 100,000 shall be imposed.