Article 382 of the Criminal Law: State functionaries embezzle, steal, cheat or make profits by other means by taking advantage of their positions.

Article 382 of the Criminal Law is about the crime of corruption. The object of this crime is a complex object. According to the logic of the crime of embezzlement, the first is property ownership, followed by the normal activities and job integrity of state organs, state-owned enterprises and institutions. The Criminal Law Amendment (IX) has made detailed provisions on this.

Legal analysis

"Corruption" is a special form of embezzlement, which is different from property crimes such as theft, fraud and robbery. Intention based on this crime of embezzlement can be manifested as the so-called crime of embezzlement, theft and fraud. The following specific elements are analyzed:

(1) national staff: special requirements of the subject. The so-called state functionaries refer to those who are engaged in public affairs in state organs. According to the provisions of the second paragraph, the entrustment relationship can also constitute the subject of crime;

(2) Take advantage of the convenience of the position: it must be the convenience of the position corresponding to the subject, such as taking advantage of the authority to be responsible for, handle and manage public property within the scope of its duties. It should be noted here that it does not include the "dividends" brought by various interpersonal relationships or identities formed because of their important position in the administrative system, otherwise it will lead to improper expansion of the scope of criminal law;

(3) The crime of embezzlement refers to bringing public property directly into the hands of oneself or related parties, while the crime of theft belongs to "inside job and stealing from oneself", which highlights the "secrecy" compared with the crime of embezzlement, while the crime of fraud emphasizes "making the criminal object show defects", which is similar to the general principle adopted to distinguish various property crimes.

legal ground

Article 382 of the Criminal Law of People's Republic of China (PRC) * * * State functionaries who take advantage of their positions to embezzle, steal, cheat or illegally occupy public property by other means are guilty of corruption. Personnel entrusted by state organs, state-owned companies, enterprises, institutions and people's organizations to manage state-owned property who embezzle, steal, defraud or otherwise illegally occupy state-owned property by taking advantage of their positions are regarded as corruption. Whoever colludes with the personnel listed in the preceding two paragraphs and colludes with corruption shall be punished as a * * * offender.

Article 383 of the Criminal Law of People's Republic of China (PRC) punishes a person who commits the crime of corruption according to the seriousness of the case, according to the following provisions: (1) If the amount of corruption is relatively large or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined. (2) If the amount of corruption is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined or confiscated. (3) If the amount of corruption is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; If the amount is especially huge and the interests of the state and the people suffer particularly heavy losses, they shall be sentenced to life imprisonment or death, and their property shall be confiscated. If repeated corruption is not handled, it shall be punished according to the accumulated amount of corruption. Whoever commits the crime mentioned in the first paragraph, truthfully confesses his crime before initiating public prosecution, sincerely repents, and actively returns stolen goods to avoid or reduce the occurrence of damage. Under the circumstances specified in the first paragraph, the punishment may be lightened, mitigated or exempted; In the case of the second and third provisions, a lighter punishment may be given. If a person commits the crime mentioned in the first paragraph and is sentenced to a suspended sentence under the circumstances specified in the third paragraph, the people's court may, according to the circumstances of the crime, at the same time decide to reduce his death sentence to life imprisonment after the expiration of the two-year suspension of execution, without commutation or parole.