What is the crime of misappropriating funds? Determination of the crime of misappropriating funds (2)

Identification of the crime of misappropriating funds I. The boundary between crime and non-crime

The act of misappropriating the funds of the unit can be divided into general violations of law and discipline and criminal acts of misappropriating the funds of the unit. To distinguish the boundaries between the two, we think it can be analyzed mainly from the following two aspects:

First, the amount of misappropriation of this fund. This is an important aspect to measure the social harm of misappropriation of unit funds. The amount is relatively large, and it has not been returned for more than 3 months? 、? Although it hasn't been more than 3 months, the amount is relatively large, engaging in profit-making activities? In both cases? A lot? Is the basic element of a crime. So, in this case, is it realized? A lot? It has become one of the important standards to distinguish between general violations of law and discipline and crimes of misappropriating unit funds. For the crime of misappropriating unit funds? Engage in illegal activities? In this case, although this law does not stipulate the amount requirement, from the spirit of the relevant judicial interpretation, if the amount of misappropriation is small and the social harm is not great, it will not be regarded as a crime, but only as a general violation of law and discipline.

Second, the time of misappropriating unit funds. This is another important aspect to measure the social harm of misappropriating unit funds. Because of this crime? The amount is relatively large, and it has not been returned for more than 3 months? In this case? Haven't returned it for more than three months? It is an essential element of the crime of misappropriating funds. In this case, it is one of the important criteria to distinguish whether the general violation of law and discipline and the crime of misappropriation of funds have not been returned for more than three months. For the crime of misappropriating funds? Although it hasn't been more than 3 months, the amount is relatively large, engaging in profit-making activities? 、? Engage in illegal activities? In these two cases, although there is no requirement for the length of time in this law, if the misappropriation time is short and the social harm is not great, it can be stipulated in Article 13 of this law? The plot is obvious, minor and harmless? If the situation is not recognized as a crime, it shall be dealt with according to the general violation of law and discipline of misappropriating the funds of the unit.

Second, the boundary between the crime of misappropriating funds and the crime of occupational embezzlement.

There are several obvious differences between these two crimes:

(1) The object of infringement is different from the object.

The object of the crime of misappropriating funds is the right to use funds of companies, enterprises or other units, and the object is the funds of companies, enterprises or other units.

The object of the crime of duty embezzlement is the ownership of funds of companies, enterprises or other units, and the object is the property of companies, enterprises or other units, including both monetary funds and securities, as well as physical company property, such as materials and equipment.

(2) differences in objective performance.

The crime of misappropriating funds is manifested in the fact that the staff of a company, enterprise or other unit, taking advantage of their position, misappropriate the funds of their own unit for personal use or lend them to others for use, and the amount is relatively large, which has not been paid back for more than three months, or although it has not exceeded three months, the amount is relatively large, which is a profit-making or illegal act.

The crime of embezzlement takes advantage of the position of a company, enterprise or other unit to illegally occupy the property of the unit, and the amount is relatively large. The crime of misappropriating funds is misappropriation, that is, misappropriating funds for one's own use or lending them to others without legal approval or permission; The act of duty embezzlement is the crime of embezzlement, that is, the actor uses the convenience of his position to embezzle, steal, defraud or illegally occupy the property of his unit by other means. Misappropriation of the unit's funds for illegal activities is unnecessary? A lot? Can constitute a crime; The crime of duty embezzlement can only be constituted by possessing a large amount of property of the unit.

(3) Subjective differences.

The purpose of the perpetrator of the crime of misappropriating funds is to illegally obtain the right to use the funds of his own unit, but he does not attempt to illegally possess them permanently, but is prepared to return them after use; The purpose of the perpetrator of the crime of duty embezzlement is to illegally obtain the ownership of the unit property, not to temporarily use it.

The term "non-refundable" as mentioned here refers to the non-refundable of the unit funds after misappropriation and before prosecution by the people's procuratorate. It is generally believed that in real life, people who misappropriate their own funds are divided into two situations: one is that they want to return subjectively, but they are unable to return objectively, and the other is that although they have the ability to return objectively, they have changed subjectively, and the previous intention of misappropriating their own funds has turned into the intention of embezzlement.

In judicial practice, if the perpetrator intentionally changes after misappropriating the funds of his own unit, and no longer wants to return them, but attempts to illegally take them for himself permanently, and objectively has the ability to return them without returning them, he should still be convicted and punished directly for the crime of duty embezzlement according to the principle of dealing with transformed crimes in criminal law.

Third, the boundary between the crime of misappropriating funds and the crime of misappropriating public funds.

According to the provisions of Article 384 of the Criminal Law, the crime of misappropriating public funds refers to the illegal acts of state functionaries who take advantage of their positions to misappropriate public funds for personal use, 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 crime of misappropriating funds and the crime of misappropriating public funds are objectively manifested as the act of misappropriating funds by taking advantage of one's position, subjectively intentional, and sometimes the criminal objects may all be companies, enterprises or. However, these two crimes also have the following main differences:

(1) The object of infringement is different from the object of crime.

The object of the crime of misappropriating funds is the right to use funds of companies, enterprises or other units, and the object is the funds of companies, enterprises or other units, including both state-owned or collective-owned funds and funds owned by citizens and foreign investors.

The object of the crime of misappropriating public funds is the right to use public funds, the prestige of state organs and the normal activities of state organs. , both the nature of infringement of property, and the nature of serious dereliction of duty. Therefore, this law stipulates the crime of embezzlement of public funds in the special chapter of corruption and bribery in the eighth chapter of the specific provisions, instead of? Crimes against property? Special chapter. The object of the crime of misappropriating public funds is limited to public funds, mainly state-owned property and unit property invested and shared by the state, that is, all the money of state organs, state-owned companies, enterprises and institutions.

The crime of misappropriating public funds and the crime of misappropriating funds have different objects and different degrees of social harm. The order of the objective three different situations of the crime of misappropriating public funds stipulated in Article 384 of the Criminal Law is different from that of the objective three different situations of the crime of misappropriating funds stipulated in Article 1 of this article, which also shows that legislators have different emphases on these two crimes. The crime of misappropriating public funds is also much more severe than the crime of misappropriating funds.

(2) The subject of crime is different.

The subject of the crime of misappropriating funds is the staff of companies, enterprises or other units except state staff.

The subject of the crime of misappropriating public funds is state functionaries, including those engaged in official duties in state organs, those engaged in official duties in state-owned companies, enterprises, institutions and people's organizations, those engaged in official duties in non-state-owned companies, enterprises, institutions and social organizations appointed by state organs, state-owned companies and institutions, and other personnel engaged in official duties according to law. Therefore, the second paragraph of this article clearly stipulates that those who engage in official business in state-owned companies, enterprises or other state-owned units and those who are appointed by state-owned companies, enterprises or other state-owned units to engage in official business in non-state-owned companies, enterprises or other units take advantage of their positions and misappropriate the funds of their own units shall be convicted and punished in accordance with the provisions of Article 384 of this Law on the crime of misappropriating public funds.

Fourth, the boundary between the crime of misappropriating funds and the crime of misappropriating specific funds and materials.

According to Article 273 of the Criminal Law, the crime of misappropriating specific funds and materials refers to the act of misappropriating funds and materials used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief, and the circumstances are serious, resulting in great damage to the interests of the state and the people.

The crime of misappropriating funds and the crime of misappropriating specific funds and materials are all crimes of misappropriation, with the following obvious differences:

Don't ask about the object and object of infringement.

The object of the crime of misappropriating funds is the right to use funds of companies, enterprises or other units, and the object is the funds of companies, enterprises or other units.

The object of the crime of misappropriating specific funds and materials is the state's financial management system and the right to use public funds and materials specially used for disaster relief, emergency rescue, flood prevention, disturbance prevention, poverty alleviation, resettlement and relief, and the object is the specific funds used for disaster relief, emergency rescue, flood prevention, special care, poverty alleviation, resettlement and relief, including both the civil affairs funds arranged by the state budget for the above purposes and other special funds temporarily allocated.

Objectively, the performance is different.

The crime of misappropriating funds is manifested in the fact that the staff of a company, enterprise or other unit, taking advantage of their position, misappropriate the funds of their own unit for personal use or lend them to others for use, and the amount is relatively large, which has not been paid back for more than three months, or the amount is relatively large, profitable or illegal.

The crime of misappropriating specific funds and materials is manifested in the act of misappropriating funds and materials used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief, which is serious and causes great damage to the interests of the country and the people. In the crime of misappropriating funds, the misappropriated funds can be used by individuals or lent to others. The crime of misappropriating specific funds and materials is that the actor illegally allocates and uses specific funds and materials for other purposes without legal approval, such as building buildings, buying small cars and office equipment, and making investment in production and operation. , but not for individuals. State functionaries who misappropriate the above-mentioned specific funds and materials for personal use shall be given a heavier punishment for embezzlement of public funds.

Different criminal subjects

The subject of the crime of misappropriating unit funds is the staff of companies, enterprises or other units, excluding state staff.

The subject of the crime of misappropriating specific funds and materials is the person in charge and other directly responsible personnel who control and manage specific funds and materials in state organs and other units.

Subjectively different

The intentional content of the crime of misappropriating funds is that the bank knowingly uses the convenience of its position to misappropriate funds for personal use or lend them to others.