The difference between crowding out and misappropriating special funds

1. Misappropriation of construction project funds refers to the inclusion of expenditures other than the approved budgetary estimate into project expenditures. Or construction funds are mixed with administrative accounts or production and operation accounts, and the actual balance of monetary funds is less than the balance of monetary funds of construction funds.

2. Misappropriation of construction project funds refers to the act of using project funds for examination and approval of projects, administrative funds or lending them to others (including units and individuals) and other aspects.

Two. Elements of misappropriation of public funds According to Article 384th of the Criminal Law, the elements of misappropriation of public funds are:

1. Crime is a complex object, which not only violates the ownership of public property, but also violates the financial management system of the country and the integrity of official behavior.

2. Objectively speaking, it is the behavior that the actor uses his position to misappropriate public funds for personal use without authorization.

3. The subject of the crime of misappropriating public funds is a special subject, and it must be a state functionary.

4. The crime of misappropriating public funds has direct intention subjectively, that is, the actor knowingly embezzles public funds for the purpose of illegally obtaining the right to use public funds. The four constituent elements of the crime of embezzlement are the objective criteria for identifying the crime of embezzlement and the specific criteria for distinguishing crime from non-crime.

III. Specific Determination of the Crime of Misappropriation In judicial practice, when determining whether it constitutes the crime of misappropriation of public funds, we should pay attention to the following key issues:

1, correctly understand whether the actor has the subject qualification of embezzlement. The crime of misappropriating public funds is a crime committed by state functionaries. Those who do not have the status of state functionaries cannot constitute the crime of misappropriating public funds. On this issue, before the criminal law was revised, the subjects of the crime of misappropriating public funds included state staff, staff of collective economic organizations and other personnel who handled public property management affairs. After the revision of the criminal law, the staff of collective economic organizations and other personnel who handle and manage public property are no longer the subject of embezzlement. Personnel of companies, enterprises or other units who misappropriate funds of their own units shall be convicted and punished for the crime of misappropriating funds of their own units in accordance with the provisions of Article 272 of the Criminal Law.

We should correctly judge the subjective intention of the actor. The subjective aspect of the crime of misappropriating public funds is out of direct intention, that is, the actor knowingly misappropriates public funds in violation of financial discipline, with the aim of illegally obtaining the right to use public funds. Negligence does not constitute this crime. If the actor is negligent in his work, resulting in the illegal use of public funds by others, he cannot be punished as the crime of misappropriating public funds. State functionaries who are seriously irresponsible in their work, resulting in public funds being used for illegal activities by others, resulting in serious consequences, may be investigated for criminal responsibility for dereliction of duty;

3. It is necessary to correctly judge whether the actor embezzles public funds by taking advantage of his position. If the actor fails to take advantage of his position to obtain public funds for personal use, he cannot be investigated for criminal responsibility for embezzlement of public funds;

We should pay attention to the difference between misappropriating public funds and borrowing public funds. The differences between them are as follows: first, embezzlement of public funds is carried out by the actor by taking advantage of his position, while borrowing public funds is a civil creditor-debtor relationship between the actor and the unit; Secondly, the crime of misappropriating public funds is generally carried out without the knowledge of the unit. The unit does not know the destination and use of public funds, and the loan is in compliance with the regulations and approved by the person in charge of the unit, which is open; Finally, most of the acts of misappropriating public funds have no formalities and IOUs, while borrowing public funds is generally approved through legal procedures, with loan vouchers and some records on the books.

1, the subject of the crime is different. The crime of misappropriating funds is the staff of companies, enterprises or other units; The crime of misappropriating public funds refers to the state functionaries who are engaged in public affairs according to law. For the staff of a state-owned company, enterprise or unit, or the personnel assigned by a state-owned unit to a non-state-owned unit to engage in official duties according to law, taking advantage of their positions, misappropriating the funds of their own units or lending them to others for use, they should be punished as embezzlement of public funds.

2. The targets of crimes are different. The object of the crime of misappropriating funds is the financial management system and property ownership of companies, enterprises or units; The object of the crime of misappropriating public funds is the financial management system and capital ownership of state organs, enterprises, institutions and people's organizations, as well as the non-state-owned units where the appointed state staff are located.

3. The targets of crimes are different. The object of the crime of misappropriating funds is the public funds owned by companies and enterprises, including funds, securities and specific money and materials. The crime of misappropriating public funds includes not only natural public property, but also the proposed public property and the funds of the non-state-owned units where the appointed state staff members are located.

4. Different punishments. The crime of misappropriating funds is lighter than the crime of misappropriating public funds.

Legal basis:

Article 384 of the Criminal Law of People's Republic of China (PRC) * * * State functionaries who take advantage of their positions to misappropriate public funds for personal use for 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, are guilty of corruption and are 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. Whoever misappropriates a huge amount of public funds and fails to return it 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.