How to identify the nature of village cadres encroaching on collective funds

The general conviction is the crime of misappropriation of funds, or the crime of suspected misappropriation of public funds. Village cadres who misappropriate collective funds belong to the status of state staff and are suspected of misappropriating public funds. Different crimes have different penalties, and the perpetrator should be sentenced according to the specific situation.

What is the crime of collective misappropriation of funds?

Units and collectives do not constitute the crime of misappropriating funds. The crime of misappropriating funds refers to the behavior of employees of companies, enterprises or other units who take advantage of their positions to misappropriate their own funds for personal use or lend them to others, 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, and they engage in profit-making activities or illegal activities.

Subjectively, this crime can only be intentional, that is, the actor knowingly misappropriates or lends the funds of his own unit and takes advantage of his position, but still deliberately does it. Misappropriation of unit funds can be divided into general violations of law and discipline and criminal acts of misappropriation of unit funds. Distinguish the boundaries between the two.

What acts constitute the crime of misappropriating funds?

(a) misappropriating the funds of the unit for personal use or lending them to others, and the amount is relatively large and has not been paid back for more than three months. This is a slight misappropriation. Its constituent feature is that the actor takes advantage of the position of supervisor and the convenience of handling the funds of his own unit to misappropriate the funds of his own unit. The purpose is mainly for personal use or lending to others, but it has not been used for improper economic activities, and the amount of misappropriation is large and has not been returned for more than three months.

(2) misappropriating the unit's funds for personal use or lending them to others, although it has not exceeded three months, but the amount is relatively large, and profit-making activities are carried out. There is no limit to whether the misappropriation time exceeds three months and whether it will be returned after three months, as long as the amount is large and profit-making activities are carried out. The so-called "profit-making activities" mainly refer to activities such as doing business, investing, buying stocks or bonds.

(3) misappropriating the funds of the unit for illegal activities. This kind of behavior has no restrictions on whether the misappropriation time exceeds three months, whether it will be returned after three months, and whether the amount is large. As long as the funds of the unit are misappropriated for illegal activities, it constitutes this crime. The so-called "illegal activities". Refers to smuggling, gambling and other activities using misappropriated funds.

The difference between that crime of misappropriate funds and the crime of misappropriate public funds

The crime of misappropriating public funds refers to the behavior of state functionaries who take advantage of their positions to misappropriate public funds for personal use, engage in illegal activities, or misappropriate a large amount of public funds for profit-making activities, or misappropriate 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 intentionally, and sometimes the criminal object may be the funds of companies, enterprises or other units. 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.

(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 and institutions, those engaged in official duties in non-state-owned companies, enterprises and institutions, and social organizations appointed by state organs, enterprises and institutions, as well as other personnel engaged in official duties according to law.

How will the crime of misappropriating funds be punished?

Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever misappropriates the funds of his own unit in a huge amount, or fails to return the funds in a large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

legal ground

Article 272 of the Criminal Law of People's Republic of China (PRC) * * * Any staff member of a company, enterprise or other unit who, by taking advantage of his position, misappropriates the funds of his unit for personal use or lends them to others, and the amount is relatively large, and has not been paid back for more than three months, or if the amount is relatively large, he is engaged in profit-making activities or illegal activities, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever misappropriates a huge amount of funds from his own unit shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; If the amount is especially huge, he shall be sentenced to fixed-term imprisonment of not less than seven years.

Crime of misappropriating public funds. Personnel engaged in public service 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 public service in non-state-owned companies, enterprises or other units shall be convicted and punished in accordance with the provisions of Article 384 of this Law.

Whoever commits the act mentioned in the first paragraph and returns the misappropriated funds before initiating public prosecution may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be mitigated or exempted.

Article 384 Any State functionary who, taking advantage of his position, misappropriates public funds for personal use to engage in illegal activities, or misappropriates public funds for profit-making activities in a relatively large amount, or misappropriates public funds in a relatively large amount and fails to pay them back for more than three months, is guilty of corruption and 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. 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.