Lawyer Baoding interprets the crime of misappropriating public funds in Article 384 of the Criminal Law

There is a crime of embezzlement in the criminal law. So, what is the crime of embezzlement? How to sentence this crime? How is the criminal law specifically stipulated? Let me give you a detailed introduction.

Lawyer Baoding interprets the crime of misappropriating public funds in Article 384 of the Criminal Law

The crime of misappropriating public funds refers to the behavior of state functionaries who use their position to misappropriate public funds for personal use to engage in illegal activities, or misappropriate a large amount of public funds for profit-making activities, or misappropriate a large amount of public funds for more than three months.

The subject of this crime is relying on the subject, that is, the national staff. The connotation and extension of the national staff mentioned here are basically the same as those in the above-mentioned crime of corruption. It is also a specific and official (responsibility). State functionaries who constitute the crime of misappropriating public funds include: State functionaries who are engaged in official duties in state organs. Personnel engaged in public services in state-owned companies, enterprises and institutions and people's organizations; Personnel assigned by state-owned units to non-state-owned units to engage in official duties; Other personnel engaged in public affairs according to law.

concept

The crime of misappropriating public funds refers to the behavior of state functionaries who use their position to misappropriate public funds for personal use to engage in illegal activities, or misappropriate a large amount of public funds for profit-making activities, or misappropriate a large amount of public funds for more than three months.

Object element

The object of this crime is mainly the ownership of public property, which also violates the national financial management system to some extent. The direct object of the crime of misappropriating public funds is the right to use public funds, and at the same time, the actor will inevitably possess it after misappropriating public funds, and some will also benefit from it. Ownership includes four interrelated and relatively independent powers: possession, use, income and disposal. Therefore, the infringement of ownership power must be an infringement of ownership. The infringement of ownership does not mean the transfer of ownership. According to China's General Principles of Civil Law, ownership must be obtained according to law. Therefore, in this legal sense, no property crime can really obtain ownership. The crime of misappropriating public funds infringes property ownership just like the crime of corruption, but the difference is that the degree of infringement of ownership is different. At the same time, it is precisely because the crime of misappropriating public funds directly violates the right to use public funds, violates the system of using public funds in the national financial management system, and thus violates the national financial management system. However, because the main object of the crime of embezzlement is the ownership of state property, the objects of the crime of embezzlement include: first, the ownership of state property; The second is the ownership of the collective property of the working people; Third, the property ownership of social donations or special funds used for public welfare undertakings such as poverty alleviation; Fourth, the ownership of private property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations; Fifth, the ownership of funds of non-state-owned companies, enterprises and other non-state-owned units; Sixth, the ownership of client funds in non-state-owned financial institutions. Among them, the object of the crime of misappropriating public funds includes both natural public funds and planned public funds.

The object of this crime is mainly public funds. This includes both monetary funds owned by the state and the collective, and private money in the process of state management, use, transportation, exchange and storage. In state-owned enterprises and companies, people with the status of state functionaries misappropriate the property of enterprises and companies, which is an infringement on the ownership of public property. In Sino-foreign joint ventures, cooperative ventures, joint-stock companies and enterprises, misappropriation of the funds of the above-mentioned companies and enterprises by people with the status of state staff should also be considered as infringement of the ownership of public property. According to the provisions of Article 384 of this Law, those who misappropriate funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief for personal use shall be given a heavier punishment according to the crime of misappropriating public funds, so these specific public funds and property can become the object of this crime. Misappropriation of public property for personal use should generally be handled by the competent department according to administrative discipline. If the circumstances are serious and criminal responsibility needs to be investigated, the penalty may be discounted according to the crime of misappropriating public funds. Therefore, ordinary public property can also be the object of this crime.

Public funds in a broad sense refer to public funds, state-owned funds and specific funds and materials, as well as non-state-owned units (financial institutions) and customer funds. It not only has the characteristics of public property, but also has the characteristics of public property to be used. Among them, public funds are funds owned by the public; State-owned funds refer to funds owned by the state; Special funds and materials refer to funds and materials specially used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief. It can be owned by the state, collective organizations of working people and social welfare organizations. The funds of non-state-owned units refer to the funds owned by non-state-owned companies, enterprises and other non-state-owned units; Customer funds refer to all funds of customers of financial institutions. Therefore, public funds in a broad sense include not only public funds and state-owned funds, but also specific property and funds of non-state-owned units and customers. The so-called narrow sense of public funds, especially all public funds. Including state-owned funds for poverty alleviation and other public welfare undertakings, funds collectively owned by the working people or special social donation funds. This kind of Public Offering of Fund only has the property characteristics of Public Offering of Fund.

Objective elements

The objective aspect of this crime is that the actor takes advantage of his position to misappropriate public funds for personal use.

Engaging in illegal activities, or misappropriating a large amount of public funds for profit-making activities, or misappropriating a large amount of public funds for more than three months. It contains three elements:

1. The perpetrator committed embezzlement. That is, the actor diverted public funds for other purposes without legal approval.

Second, the actor takes advantage of his position. Taking advantage of his position in charge, management and handling of public funds, he committed misappropriation of public funds.

3. The public funds misappropriated by the actor are for personal use. The so-called personal use includes both the personal use of the corrupt person and the use given or lent by the corrupt person to others. According to the provisions of this article, misappropriation of public funds for personal use can specifically include the following three situations:

1, misappropriating public funds for personal use for illegal activities. The illegal acts mentioned here refer to illegal and criminal activities such as misappropriating public funds for individuals or others to smuggle and gamble. Conviction of this situation does not require a large amount of misappropriation of public funds, nor does it stipulate how long it will take. According to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds (1 implemented on May 9, 1998), those who misappropriate public funds for personal use and engage in illegal activities start from more than 5,000 yuan110,000 yuan; The starting point for misappropriation of public funds is 1 10,000 yuan but not more than 30,000 yuan, which belongs to profit-making activities of individuals or has not been returned for personal use for more than three months. Misappropriation of public funds that does not meet the above standards is generally not considered a crime.

2, misappropriation of public funds for personal profit-making activities, and the amount is large. This refers to the misappropriation of a large number of public funds as the capital of corrupt or other people's profit-making activities. For example, the embezzler himself or others will use the misappropriated public funds for production, operation and house rental, and deposit them in banks or lend them to others for personal gain as funds for individuals to participate in business activities. If the actor lends the misappropriated public funds to enterprises, institutions and groups for personal gain, whether these units jointly use the misappropriated public funds for profit-making activities or not, it should be considered as misappropriation of public funds for individuals to use for profit-making activities, not misappropriation of public funds. The amount here is relatively large, starting from embezzlement 1 10,000 yuan to 30,000 yuan, and from embezzlement150,000 yuan to 200,000 yuan. The law does not require how long it will take to misappropriate public funds, nor does it require the actor to truly achieve the purpose of making profits. However, if the actor has repaid the principal and interest in part or in whole before committing the crime, he may be given a lighter punishment according to the circumstances, and the punishment may be exempted if the circumstances are minor.

3. Misappropriation of public funds for personal purposes other than the above-mentioned illegal activities and profit-making activities, and the amount is relatively large and has not been returned for more than three months. Such as misappropriating public funds to build private houses, buying furniture and other daily necessities, organizing weddings, paying medical expenses or repaying family and personal debts. This situation requires the misappropriation of public funds to reach a certain amount. It also requires misappropriation of public funds for a certain period of time. The large sum here also starts from1-30,000 yuan, and starts from 6,543.8+0.5 million yuan to 200,000 yuan. Failure to return refers to the fact that it was not returned before the incident (before it was discovered by judicial organs, competent departments or relevant units). If the amount of misappropriation of public funds is relatively large, more than three months, and all the principal has been returned before the incident, the punishment may be lightened or mitigated. The losses caused to the state and the collective should be recovered. The amount of misappropriation of public funds is huge, more than three months. Although all principal and interest have been returned before the incident, it will be given a lighter punishment. In practice, there are also cases where the actor misappropriates public funds many times and returns the previously misappropriated public funds with the later misappropriated public funds, and the interval between each misappropriation is not more than three months, which should be counted from the first misappropriation of public funds. Accumulate until the misappropriation ends. When the perpetrator is investigated for criminal responsibility, the amount of misappropriation of public funds is determined according to the amount that has not been returned at last.

Misappropriation of public funds for other people's use without knowing that the user is using public funds for profit-making or illegal activities, and the amount is large and has not been paid back for more than three months, which constitutes the crime of misappropriation of public funds. Knowing that users use public funds for profit-making activities or illegal activities, they should be identified as misappropriating public funds for profit-making activities or illegal activities.

Theme element

The subject of this crime is a special subject, that is, national staff. The connotation and extension of national staff mentioned here are basically the same as those mentioned in the crime of corruption. It is also a specific and official (responsibility). State functionaries who constitute the crime of misappropriating public funds include:

State functionaries engaged in public affairs in state organs. Personnel engaged in public services in state-owned companies, enterprises and institutions and people's organizations; Personnel assigned by state-owned units to non-state-owned units to engage in official duties; Other personnel engaged in public affairs according to law.

subjective factor

Subjectively, this crime has direct intention. The perpetrator knew that it was public funds and deliberately used it for other purposes. Its criminal purpose is to illegally obtain the right to use public funds. However, its subjective feature is that it only illegally obtained the temporary right to use public funds and intends to return them later. As for the motives of the perpetrator to misappropriate public funds, there may be various reasons, some for profit, some for temporary family difficulties, some for funding others, and some for engaging in illegal and criminal activities. How the motive does not affect the establishment of this crime. Specifically, the crime of misappropriating public funds has the following subjective characteristics:

1. It is illegal to misappropriate public funds. That is, the actor automatically uses public funds without approval or permission (including direct express permission or indirect express acquiescence) in violation of rules and regulations. Among them, the rules and regulations are extensive, so the illegality of misappropriation has two meanings: one is to deliberately violate the rules and regulations concerning the management of public funds, and the other is to deliberately violate the rules and regulations concerning the use of public funds without legal approval or permission.

2. The original intention of misappropriation refers to the private use, misappropriation, occupation and borrowing of public funds. The purpose of the bill is to use rather than occupy public funds. Among them, the purpose of the behavior includes:

(1) misappropriate public funds for personal use;

(2) misappropriating public funds for illegal activities;

(3) Misappropriation of public funds for profit-making activities.

3. Misappropriation is not misappropriation of public funds, but preparation for return, which is characterized by unauthorized borrowing. Even if it cannot be returned after misappropriation, it is not due to the subjective and intentional possession of the actor, but an objective reason beyond the will of the actor.

Therefore, in judicial practice, when determining the subjective aspect of the crime of misappropriating public funds, we can grasp the following points: whether we know it is public funds; Whether it is intentionally illegally used; Whether you just want to temporarily misappropriate it; Are you going to return it later? When the embezzler is inconsistent with the user, if the embezzler doesn't know that the user is using public funds for illegal activities, he can only be punished according to what the embezzler knows and according to the misappropriation of public funds for profit or personal use. If the embezzler knows that the user is using public funds to carry out illegal activities, he will punish the illegal act with the crime of misappropriating public funds; If the embezzler's subjective intention changes from temporary appropriation to illegal permanent possession after committing a crime, no matter whether the perpetrator really has the objective aspect of illegal permanent possession of public funds, as long as he fails to pay it back for more than three months, he will be punished as embezzlement, not as corruption and embezzlement. Therefore, the crime of misappropriating public funds is different from the crime of embezzlement and misappropriation of public funds in the process of intentional development of practitioners; The crime of misappropriating public funds begins with the use of public funds and may develop into possession in the future; Corruption and embezzlement always run through the purpose of possessing public funds.

Determination of this crime

When determining whether a misappropriation of public funds constitutes a crime of embezzlement, we should grasp the following points:

1. Examine whether the perpetrator belongs to the range of persons who have the capacity for criminal responsibility, have reached the age of criminal responsibility and have the status of national staff as stipulated in Article 93 of this Law. If the above three conditions are indispensable, the actor cannot become the subject of embezzlement. As for the scope of national staff, it should be confirmed in strict accordance with the law.

2. Investigate whether the perpetrator has corruption according to law and whether corruption is carried out in the course of official duties.

3, investigate the misappropriation of public funds, whether there are three characteristics. That is, engaging in illegal activities, engaging in profit-making activities, and not paying back for more than three months.

4. Investigate whether the misappropriated funds belong to the scope of public funds. Public Offering of Fund here is broad, including both currency and securities, as well as specific funds and materials.

5. For profit-making and non-refundable misappropriation, it is also necessary to investigate whether the amount of misappropriation of public funds is relatively large, that is, 1 10,000 yuan to 30,000 yuan. Among them, the amount of public funds does not include the interest generated from the time of misappropriation to the time before the incident; The amount of profit does not affect the determination of profit purpose; Whether the perpetrator actively returns public funds after the crime does not affect the determination of the crime of misappropriating public funds, but the act of returning stolen goods can be considered as a sentencing circumstance.

6. There is no limit to the amount and time of illegal misappropriation of public funds. At the same time, illegal behavior generally refers to all activities that violate laws, regulations, rules, orders and rules. No matter whether the illegal act is completed or not, as long as the actor uses the misappropriated public funds for the illegal act, it is regarded as an illegal act.

7. The embezzler and user of the crime of misappropriating public funds are sometimes consistent and sometimes inconsistent. But it does not affect the determination of the crime of misappropriation of public funds.

In short, when identifying the crime and non-crime of misappropriation of public funds, we should see whether the act belongs to the scope of legal misappropriation of public funds; Second, see if this behavior meets the constitutive requirements of the crime of misappropriation of public funds.

The distinction between the crime of misappropriating public funds and non-crime

First of all, not all misappropriation of public funds constitutes a crime. Therefore, the key to determine the boundary between the crime of misappropriation of public funds and non-crime is to see whether misappropriation of public funds belongs to the legal category of misappropriation of public funds. It depends on whether this kind of behavior belongs to the following legal scope of misappropriation of public funds, and other misappropriation of public funds outside this scope should be regarded as a general illegal act of misappropriation of public funds. The following acts of misappropriation of public funds belong to the acts that constitute the crime of misappropriation of public funds:

1, staff members of state-owned companies, enterprises, institutions and people's organizations, and personnel appointed by state-owned companies, enterprises, institutions and people's organizations to engage in official duties in non-state-owned companies, enterprises, institutions and people's organizations, take advantage of their positions, misappropriate the funds of their own units for personal use and engage in illegal activities; Or misappropriate the funds of the unit for profit-making activities in a large amount; Or misappropriate a large amount of funds from the unit, which has not been repaid for more than three months.

2. Personnel engaged in official business in state-owned companies, enterprises or other state-owned units and personnel appointed by state-owned companies, enterprises or other state-owned units to engage in official business in non-state-owned companies, enterprises and other units, taking advantage of their positions, misappropriate the funds of their own units for personal use or lend them to others for use, and the amount is relatively large and has not been repaid for more than three months; Or, although it has not been more than three months, the amount is relatively large and profit-making activities are carried out; Or engage in illegal activities.

3. State functionaries use their positions to misappropriate public funds for personal use and engage in illegal activities; Or misappropriate a large amount of public funds to engage in profit-making activities; Or the amount of misappropriation of public funds is relatively large, and it has not been returned for more than three months.

4. State functionaries take advantage of their positions to misappropriate funds and materials for disaster relief, emergency rescue, special care for flood control, poverty alleviation, immigration and relief for personal use.

Characteristics of this crime

1. It is illegal to misappropriate public funds. That is, the actor automatically uses public funds without approval or permission (including direct express permission or indirect express acquiescence) in violation of rules and regulations. Among them, the rules and regulations are extensive, so the illegality of misappropriation has two meanings: one is to deliberately violate the rules and regulations concerning the management of public funds, and the other is to deliberately violate the rules and regulations concerning the use of public funds without legal approval or permission.

2. The original intention of misappropriation refers to the private use, misappropriation, occupation and borrowing of public funds. The purpose of the bill is to use rather than occupy public funds. Among them, the purpose of the behavior includes:

(1) misappropriate public funds for personal use;

(2) misappropriating public funds for illegal activities;

(3) Misappropriation of public funds for profit-making activities.

3. Misappropriation is not misappropriation of public funds, but preparation for return, which is characterized by unauthorized borrowing. Even if it cannot be returned after misappropriation, it is not due to the subjective and intentional possession of the actor, but an objective reason beyond the will of the actor.

Therefore, in judicial practice, when determining the subjective aspect of the crime of misappropriating public funds, we can grasp the following points: whether we know it is public funds; Whether it is intentionally illegally used; Whether you just want to temporarily misappropriate it; Are you going to return it later? When the embezzler is inconsistent with the user, if the embezzler doesn't know that the user is using public funds for illegal activities, he can only be punished according to what the embezzler knows and according to the misappropriation of public funds for profit or personal use. If the embezzler knows that the user is using public funds to carry out illegal activities, he will punish the illegal act with the crime of misappropriating public funds; If the embezzler's subjective intention changes from temporary appropriation to illegal permanent possession after committing a crime, no matter whether the perpetrator really has the objective aspect of illegal permanent possession of public funds, as long as he fails to pay it back for more than three months, he will be punished as embezzlement, not as corruption and embezzlement. Therefore, the crime of misappropriating public funds is different from the crime of corruption and embezzlement in the process of intentional development: the crime of misappropriating public funds begins with the use of public funds and may later develop into possession; However, the crime of embezzlement and embezzlement always run through the purpose of occupying public funds.

Sentencing standard

Whoever commits the crime of misappropriating public funds shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years.

The amount of misappropriation of public funds

Those who fail to return the huge amount shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment. Whoever misappropriates funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief for personal use shall be given a heavier punishment.