A unit leader, tampering with employee records, advance fraudulent social security fund belongs to what crime?

The crime of job appropriation, refers to the company, enterprise or other units of personnel, the use of the convenience of their duties, the unit of property illegally for their own, the amount of behavior. First, the concept and its composition (a) the object elements

The object of this crime is the company, enterprise or other units of property ownership. The so-called "company", refers to the "Chinese people's *** and the State Company Law" established in accordance with the provisions of the non-state limited liability companies and joint-stock companies; the so-called "enterprise", refers to the company other than the non-state through the industrial and commercial administrative organs approved the establishment of a certain number of registered companies. Approved the establishment of a certain amount of registered capital and a certain number of employees of the profit-making economic organizations, such as stores, factories, restaurants, hotels and a variety of service industries, transportation industry and other economic organizations; other units, in addition to the above companies, enterprises, non-state social groups or economic organizations, including collective or privately-run institutions, as well as various types of groups.

The object of the crime of misappropriation is the company, enterprise or other units of property, including movable and immovable so-called "movable property", not only refers to the company, enterprise, other units of money and property under the management of possession (including yuan, foreign currency, securities, etc.), but also includes the unit has the right to possession but not possession of the property. The property, such as the company, enterprise or other units have a claim. As far as the form of property is concerned, the object of crime includes tangible and intangible things, such as plant, electricity, gas, natural gas, industrial property rights, and so on.

(2) objective elements

This crime in the objective aspect of the use of the convenience of their positions, the appropriation of the unit's property, the amount of behavior specifically, including the following three aspects:

1, it must be the use of their own position, the so-called use of the convenience of the position, refers to the use of the power and the convenience of the article of the job-related work. Authority, refers to the power within the scope of my position, position, and position-related facilities, refers to although not directly using the authority of the position or post, but the use of my authority or position formed by the convenience of the conditions, or through the use of other people in the position or position of the convenience of the conditions. Including: (1) the use of their own supervisory, sub-control, handle, decide or deal with, as well as the handling of certain matters, etc.; (2) rely on, by virtue of their own power to command, influence subordinates or the use of other personnel with the position, post-related authority; (3) rely on, by virtue of the authority, status control, sway other personnel, or the use of their own request for the authority of personnel, such as the use of the leadership of the unit to allocate, dispose of the unit's property; the cashier's right to handle and manage money and property; and the general employee's right to use the unit's property, such as a house, to be temporarily given to him or her for use and safekeeping. As for not using the convenience of the position, but only the use of work convenience such as familiar with the environment, easy to mix into the scene, easy to approach the target, etc., even if the acquisition of property, it is not a crime, constitute a crime, shall be punished by other crimes such as theft.

2, there must be misappropriation of behavior. The unit of property, refers to the unit of all property in possession of law, including the unit in their own name or not in their own name, but for the unit in possession of all property rights, intangible property rights and claims. The specific forms of such property may include buildings, equipment, goods in stock, cash, patents and trademarks. The so-called illegal possession, refers to the use of embezzlement, theft, deception and other means of the unit of property into private ownership, including both the legal has been held by the unit of property as their own property to be disposed of, the use of the collection of that is to change the possession of all the behavior, such as their own possession of the unit of housing, equipment, and other property falsely claimed to be their own, marking the price of the sale; will be living in the unit of the house, the transfer of the registration of their own; or conceal the custody of the things, falsely claimed to have been stolen Of things, falsely claimed to have been stolen, lost, damaged, etc., including the first not in possession of the unit's property, but the use of their positions and fraud, theft, embezzlement, and thus converted into private behavior. Regardless of whether it is first held and turned into their own or not first held and take the method of embezzlement, theft, fraud into their own, as long as the nature of the purpose of illegal possession, and the use of duty to make the illegal possession of the intention, to achieve the amount of the larger standard, can constitute this crime. It is worth noting that once the illegal appropriation of the unit's property has begun, it is in a state of continuation, but this is only a continuation of the results of illegal ownership, not a continuation of the appropriation of the crime. The completion of the act of appropriation shall be considered as an attempt. As for attempt, it shall depend on whether the act of misappropriation is completed or not, and if it is not completed, it shall be punished as an attempt, such as a treasurer who intentionally leaves a certain collection unaccounted for but is discovered before he has time to close the account, it shall be punished as an attempt of this crime.

3, must reach the extent of the larger amount if only unlawful appropriation of companies, enterprises and other units of property, but does not reach the larger amount of the standard, can not constitute this crime. As for the larger amount of the starting amount, with reference to the supreme people's court "on the violation of the company's bribery, embezzlement, misappropriation and other criminal cases of the interpretation of the law" of the provisions of the company, enterprise and other units of the appropriation of the property of 5,000 yuan to 20,000 yuan or more.

(C) the main elements

The subject of this crime is a special subject, including companies, enterprises or other units of personnel. Specifically refers to three different identities of natural persons, one is a joint-stock company, limited liability company directors, supervisors, these directors, supervisors must not have the status of state employees, they are the actual leader of the company, with certain powers, of course, can become the subject of this crime. Secondly, the personnel of the said company refers to the managers, department heads and other general staff and workers other than the directors and supervisors of the company. These managers, department heads, and employees must also not have the status of state employees, they either have specific authority, or because they are engaged in certain work, they can become the subject of this crime by taking advantage of their authority or work to misappropriate the company's property, Thirdly, the personnel of the enterprises or other units other than the above mentioned company, refers to the workers of enterprises of collective nature, private enterprises, wholly foreign-owned enterprises, state-owned enterprises, companies, Chinese-foreign joint ventures, Chinese-foreign cooperative enterprises, etc., all employees who do not have the status of state officials. To sum up, any person who has the status of a state official and takes advantage of his position or the convenience of his work to appropriate the property of his organization shall be punished in accordance with the provisions of Articles 382 and 383 of this Law on the crime of embezzlement, while any person who does not have the status of a state official and takes advantage of his position to appropriate the property of his organization shall be punished in accordance with the provisions of this crime. The term "state functionary" here refers to a person who exercises management authority in a state-owned company, enterprise or other company or enterprise and has the status of a state functionary, including a person who is appointed or hired by a state-owned company or enterprise as a representative of a state-owned company or enterprise, and a person who exercises managerial authority in a Chinese-foreign equity joint venture, cooperative joint-stock company or enterprise. non-state-owned companies and enterprises, exercising management authority and having the status of state functionaries. A person with the status of a state official cannot be the subject of this offense.

(4) Subjective Elements

The subjective aspect of this crime is direct intent and the purpose of illegally appropriating the property of the company, enterprise or other unit. That is, the perpetrator is trying to obtain the right to possess, gain and dispose of the unit's property in the economy. Whether or not these rights have been acquired or exercised does not affect the constitution of the offense. [Edit Paragraph] II. Determination (A) the boundaries between this crime and the crime of embezzlement 1. The main elements are different, the main body of this crime is the company, enterprise or other units of the personnel. Whether it is a joint-stock company, a limited liability company, or a state-owned company, enterprise, Sino-foreign equity joint venture, Sino-foreign cooperation, collective nature of the enterprise, wholly foreign-owned enterprises, private enterprises, etc. do not have the status of state officials of all employees can become the subject of this crime, the subject of the crime of embezzlement is limited to the state staff, including in the state-owned company, enterprise, or other companies, enterprises in the exercise of managerial powers, and Those who have the status of state employees, including those who are appointed or hired by state-owned companies or enterprises as representatives of state-owned companies or enterprises, and those who exercise managerial powers in non-state-owned units such as Chinese-foreign joint ventures, cooperatives, joint-stock companies and enterprises, and who have the status of state employees.

2, the criminal behavior is different, this crime is the use of the convenience of duty, the appropriation of the unit's property. And the crime of embezzlement is the use of the convenience of duty to embezzle, theft, fraudulent public **** property behavior.

3, the object of the crime is different. The object of this crime must be their own terms of reference or work within the scope of operation of the unit's property. It may be both public **** property, but also private property. The crime of embezzlement, on the other hand, can only be public **** property.

4, the requirements of the plot elements are different. The composition of this crime must be misappropriation of the company, enterprise property amount of large behavior, the amount of small does not constitute a crime. But the law does not stipulate the amount of the crime of embezzlement limitations. Of course, if the amount of the crime is small, the circumstances are significantly less harmful embezzlement should not be considered a crime.

5, the legal penalty is different. The maximum statutory penalty for this crime is only fifteen years of imprisonment, while the maximum statutory penalty for embezzlement is death.

(2) with the status of state officials and companies, enterprises or other units of personnel **** with the appropriation of unit property how to characterize and deal with

There are two different opinions: one opinion is the basic characteristics of the main offender, such as the identity of the main offender with the status of state officials, then the same offender is convicted of embezzlement; the main offender's identity is a company, enterprise or other units of personnel, then the main offender with the status of the company, enterprise or other units, then the main offender is a company, enterprise or other units, then the main offender is a company, enterprise or other units, then the main offender is a company, enterprise or other units. If the identity of the principal offender is that of a company, enterprise or other organization, then the co-accused with the identity of a state official shall be convicted of embezzlement. Another opinion is: if the identity of the principal offender is a person of a company, enterprise or other unit, then the whole case will be convicted of embezzlement; if the identity of the principal offender is a state official, then the offenders should be convicted separately, and those with the identity of state officials should be convicted of embezzlement, and those with the identity of a company, enterprise or other unit should be convicted of embezzlement. We basically lean on the second opinion, practice is for reference only.

(C) the boundaries of the crime and theft

The two crimes are to illegally take possession of property for the purpose of violating the ownership of property crime. The main difference between the two is:

1, the subject of different elements, the subject of this crime is a special subject, the subject of theft for the general subject.

2, the object of the crime is different, the object of this crime can only be the property of the unit; and the object of the crime of theft is other people's property, including public and private property, and more than criminal behavior is not controlled by their own other people's property.

3, different means of crime. This crime is the use of the convenience of the unit in actual charge of the appropriation of property; and theft is the use of covert theft means of obtaining other people's property behavior.

4, different statutory penalties. The maximum statutory penalty for this crime is fifteen years of imprisonment, the statutory penalty is lighter, and the range of sentencing is smaller; while the maximum statutory penalty for theft is death, the range of sentencing is wider.

(D) the crime and the boundaries of fraud

The two crimes are to illegal possession for the purpose of violating the ownership of property, the main difference between the two lies in: 1, the main elements are different, the main body of this crime is a special subject, it must be a company, enterprise or other units of the personnel; and the main body of the crime of fraud for the general subject.

2, the object of the crime is different. The object of this crime is the company's property, such property has actually been mastered by the perpetrator, while the object of the crime of fraud is not for their own actual control of other people's property.

3, the behavior of the crime is different. This crime is the use of the convenience of their duties to misappropriation of the unit's property; while the crime of fraud is the use of fictitious facts or concealment of the truth of the method of fraudulent acquisition of other people's property.

(E) the crime and the misappropriation of the boundaries of the crime

1, the main body of the crime is a company, enterprise or other units of the staff, and non-State workers, for the special subject; while the latter's subject for the general subject, that is, to reach the age of criminal responsibility has the capacity for criminal responsibility of the natural person.

2, the subjective aspect of this crime is to know that the unit's property and determined to take the means of embezzlement, theft, fraud, etc., illegal possession; and the subjective content of the latter crime is to know that it is the other person's custody of property, forgotten or buried and determined to take possession of, and refused to give back.

3, the crime in the objective aspect of the use of their duties will be the illegal occupation of unit property for their own, that is, the public for private. However, the perpetrator must use the convenience of his position, by means of embezzlement, theft, deception, etc., but whether or not the property has been held for the first time does not affect the establishment of this crime; and the latter must be justified, in good faith, lawful possession of other people's property, and then use all kinds of means of possession and refused to return, the behavior does not require the use of the convenience of the position.

4, the object of this crime is the company, enterprise or other units of property, which are state-owned, collective, and personal: the latter crime is only the violation of other people's three kinds of specific things, that is, the Department for their own property, forgotten or buried. The other person is only an individual, and not a unit.

5. The object of this crime is the ownership of public and private property; while the latter crime violates only the ownership of other people's property.

6, this crime is not a case that is dealt with only by telling, while the latter is dealt with only by telling. [edit paragraph] Third, the penalty for committing this crime, the larger amount, shall be sentenced to less than five years of fixed-term imprisonment or detention; the amount is huge, shall be sentenced to more than five years of fixed-term imprisonment, and may also be confiscated property. [Edit Paragraph] IV. The Crime of Occupation of Office and the Crime of Embezzlement According to Article 270 of the Criminal Law, the crime of encroachment refers to the act of illegally taking possession for the purpose of illegally taking possession of other people's property that one has kept in custody on behalf of another person, illegally taking possession of it for a larger amount and refusing to return it, or illegally taking possession of other people's forgotten or buried property for a larger amount and refusing to hand it over. Occupation and misappropriation are both crimes against property, and both violate the ownership of other people's property. Subjectively, both have the purpose of illegal possession, objectively, both have the characteristics of legal possession for illegal possession, but the difference between the two is obvious. First of all, the subject of the crime is different, the subject of the crime of misappropriation can only be a company, enterprise or other units in charge of, management, handling the unit's property, while the latter subject is to hold other people's property. Secondly, the objective performance of the crime is different, the crime of occupying a position is the use of the position of supervisor, management, handling the convenience of the unit's property, as long as the perpetrator has committed the act of illegally occupying the unit's property, it can constitute a crime, and it is not necessary for the perpetrator to refuse to hand it over or to refuse to return it to the unit. The crime of misappropriation without the use of the convenience of the position, after the implementation of the illegal occupation of behavior, but also must be refused to return or refused to hand over for the establishment of the necessary elements of the crime. Third, the object of the crime is different. Occupation of the crime of criminal object can only be unit property, while the criminal object of the crime of misappropriation includes the perpetrator of the escrow of other people's property, but also includes other people's forgotten things and buried things. [Edit Paragraph] V. The Crime of Occupation of Duty and the Crime of Misappropriation of Funds According to Article 272 of the Criminal Law, the crime of misappropriation of funds is a crime in which a staff member of a company, an enterprise or another unit, using the convenience of his or her position, misappropriates the funds of his or her unit for his or her personal use or lends them to another person in a larger amount, which has not been repaid for more than three months, or which, although it has not been more than three months, is in a larger amount, and carries on a profit-making activity or carries on an illegal activity. Behavior. The similarity between the two is the subject of the crime are companies, enterprises or other units of the staff. The object is the property ownership of the company, enterprise or other unit. Objective aspects are manifested in the use of the convenience of the position. The difference between the two is: (1) the object of the crime is not the same. Although both crimes violate the ownership of property, but the crime of misappropriation of property infringement of the ownership of all the powers; and misappropriation of funds only part of the crime of infringement of ownership, that is, infringement of the right to use the funds and the right to income, but did not infringe the right to dispose of. (2) the object of criminal behavior is not the same, the object of the crime of occupational misappropriation is the property of the unit, the extension is broader than the funds; and the misappropriation of funds can only be the funds of the unit. (3) The content of criminal intent is different, the intentional content of the crime of misappropriation of office is to illegally occupy for the purpose of having, completely not intend to return; while the intentional content of the crime of misappropriation of funds is only a temporary borrowing of the unit's funds, ready to return later. [Edit Paragraph] VI, the crime of misappropriation of office and embezzlement As mentioned earlier, the crime of misappropriation of office and embezzlement have a close relationship, and from the legislative process, the crime of misappropriation of office is divided from the crime of embezzlement. From the point of view of criminal composition, the two are the same: (1) subjective are composed of intent. (2) Objective aspects are manifested in the use of the convenience of duty. (3) in behavior are manifested as theft, fraud, embezzlement or other illegal means of possession of public **** property behavior. The difference between the two is mainly manifested as follows: (1) the main body of the crime is different, which is the main and most essential difference between the crime of occupation and embezzlement, the main body of the crime of occupation is a non-state staff, the main body of the crime of embezzlement is the staff of the state organs and the people entrusted with the management of state-owned property by the state organs, state-owned companies, enterprises, institutions, people's organizations, the management of the state-owned property, the management of the personnel. (2) The object of the crime and the object of the crime are different. The object of the crime of misappropriation of office is the property ownership of the company, enterprise or other unit, and the object of the crime is the property of the unit, which, from the nature of ownership, may be public **** property or non-public **** property. And the embezzlement crime violates the complex object, double object, it violates both the ownership of public **** property, also violates the integrity of the state staff's position, the object of its crime is limited to public **** property. (3) Constitutes the amount of the crime standards and legal penalties are different. The amount of the crime of misappropriation of functions is higher than that of embezzlement. In accordance with the provisions of the Interpretation, the crime of misappropriation of functions is "5,000-20,000 yuan" as the starting point for the larger amount. According to the provisions of Article 383 of the Criminal Law, embezzlement generally takes 5,000 yuan as the starting point of the amount of criminal liability, and criminal liability can also be pursued for less than 5,000 yuan and more serious circumstances. In terms of statutory penalties, the statutory maximum penalty for the crime of misappropriation of functions is 15 years' imprisonment, while the statutory maximum penalty for the crime of embezzlement is the death penalty. This is also in line with our country's "strict control of officials" criminal policy.