Do you have to go to jail for misappropriating public funds to pay back the money?

1. Should I go to jail for misappropriating public funds to pay back the money?

Whether to go to jail after misappropriating public funds and paying back the money depends on the situation.

Embezzlement of public funds requires paying back the money within three months without going to jail. According to the relevant laws and regulations of the state, one of the behavior patterns of the crime of misappropriating public funds is the staff of companies, enterprises and other units. If the amount is large according to the amount and time of misappropriating public funds, they will generally not bear criminal responsibility. However, if it is not returned for more than 3 months, it will be criminally filed by the procuratorate, that is, criminal responsibility will be investigated; Or, misappropriating public funds for personal use and engaging in illegal activities, even if returned, also constitutes the crime of misappropriation of public funds.

Second, the crime of misappropriating funds

(1) The crime of misappropriating funds refers to the behavior of personnel of non-state-owned companies and enterprises who, by taking advantage of their positions, misappropriate the funds of their own units in a relatively large amount.

The Criminal Law Amendment (XI) has revised this crime, mainly changing the original sentencing grades of less than 3 years and 3- 10 years into three grades of fixed-term imprisonment: less than 3 years, 3-7 years and more than 7 years. However, the specific judicial interpretation is still the introduction of the corresponding amount.

(two) misappropriation of funds mainly includes:

1. misappropriate the funds of the unit for personal use or lend them to others, and the amount is large and has not been paid back for more than three months.

2. Although it didn't last more than three months, the amount was relatively large and it was engaged in profit-making activities.

3. Those who engage in illegal activities shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention;

4. 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;

5. If the amount is especially huge, he shall be sentenced to fixed-term imprisonment of more than seven years.

Three, the following acts of misappropriation of public funds belong to the crime of misappropriation of public funds:

1. The staff of state-owned companies, enterprises, institutions and people's organizations, and the personnel appointed by state-owned companies, enterprises, institutions and people's organizations to engage in public affairs 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 take advantage of their positions to misappropriate funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief for personal use.

Four, in determining whether a misappropriation of public funds constitutes a crime of misappropriation of public funds, 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 whether misappropriation of public funds has 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 check whether the amount of misappropriated 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.

Legal basis:

Criminal law of the people's Republic of China

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.

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery

Article 5 Whoever misappropriates public funds for personal use to engage in illegal activities and the amount is more than 30,000 yuan shall be investigated for criminal responsibility for the crime of misappropriating public funds in accordance with the provisions of Article 384 of the Criminal Law; If the amount is more than 3 million yuan, it shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 384th of the Criminal Law. Under any of the following circumstances, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 384th of the Criminal Law:

(a) the amount of misappropriation of public funds is more than one million yuan;

(2) misappropriating specific funds and materials such as disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief, with the amount of more than 500,000 yuan but less than 1 million yuan;

(three) misappropriation of public funds is not returned, and the amount is less than 500 thousand yuan/kloc-0 million yuan;

(4) Other serious circumstances.