Jurisprudence holds that the constitution of a crime and its theory are the products of the principle of legally prescribed punishment for a crime, which requires the criminal law to make clear and clear provisions on the conditions and legal consequences of various crimes, and the constitution of a crime is the condition for the establishment of a crime. Different crimes have different criminal constitutions, and different crimes are established according to different criminal constitutions, which provides the only legal standard for distinguishing this crime from that crime. The constitution of crime is of great significance to the realization of the rule of law, the protection of legitimate rights and interests, and the protection of civil liberties. Corruption and misappropriation of public funds are all duty crimes, so they have the characteristics of duty crimes. The similar object of duty crime is the integrity and non-buyability of duty behavior. As far as the two crimes are concerned, they are both impure omission crimes; Special topic; The subjective aspect is intentional. The following is the particularity of the two crimes as duty crimes, which are expounded from the perspective of crime constitution.
China's Criminal Law stipulates that it is a crime to misappropriate public funds for personal use and engage in illegal activities, or to misappropriate public funds for profit-making activities in a large amount, or to misappropriate public funds in a large amount that has not been returned for more than three months. State functionaries who take advantage of their positions to embezzle, steal, cheat or illegally occupy public property by other means are guilty of corruption.
First, the subject of the crime of corruption and misappropriation of public funds
Corruption and misappropriation of public funds are special subjects-national staff. Article 93 of China's criminal law stipulates that: state functionaries refer to those who are engaged in public affairs in state organs; Personnel engaged in public service in state-owned companies, enterprises, institutions and people's organizations, personnel engaged in public service in non-state-owned companies, enterprises, institutions and social organizations appointed by state organs, state-owned companies, enterprises and institutions, and other personnel engaged in public service according to law are regarded as national staff.
According to article 93 of the Criminal Law, state employees can be divided into four situations:
Personnel engaged in public service in state organs: personnel engaged in public service in organizations exercising state administrative functions and powers in accordance with laws and regulations, personnel engaged in public service in organizations entrusted by state organs to exercise their functions and powers on behalf of state organs, and personnel engaged in public service in state organs, although not included in the establishment of state organs, are regarded as staff of state organs. In addition, people who are engaged in official duties in party and government organs and CPPCC organs at or above the township level are regarded as staff members of state organs. When judging whether it belongs to the special subject identity of the staff of state organs, it depends on whether it is exercising the behavior related to its functions and powers, that is, engaging in official duties, and whether it is exercised according to law.
Personnel engaged in public affairs in state-owned enterprises, institutions and people's organizations: in this category, we must first pay attention to the fact that the nature of the unit must be state-owned. Only wholly state-owned enterprises and institutions belong to state-owned units in criminal law, and other joint-stock companies with state-owned capital holding shares belong to non-state-owned units in criminal law. "the Supreme People's Court's Reply on How to Convict Management Personnel in Joint-stock Companies with State-owned Capital Holdings and Shares" clearly states that "Management personnel in joint-stock companies with State-owned Capital Holdings and Shares, except those appointed by state organs, state-owned companies, enterprises and institutions to engage in public affairs, do not belong to state staff. Second, these people must exercise state management power.
Personnel assigned by state-owned units to non-state-owned units to engage in public affairs. The appointment of personnel engaged in public service refers to the personnel entrusted by state-owned units and sent to non-state-owned units to engage in organization, leadership, supervision and management. This kind of people mainly look at the identity of the appointment object, but don't ask what the identity of the appointment object is. Whether the appointee was originally a member of the appointing unit or the appointed unit, or a person temporarily recruited from the society; Whether the appointee is a national cadre or worker, farmer or unemployed person; It can be nomination, recommendation, delegation and appointment in advance or in the event, or it can be recognition, consent and recognition afterwards; As long as the agreement can be proved, the form of the agreement can be written or oral. Note: The election or appointment of a non-state-owned unit that accepts the appointment cannot deny the nature of the appointment of a state-owned unit, unless the original appointing unit cancels or cancels its appointment. In addition, after a state-owned company or enterprise is restructured into a joint stock limited company, the staff of the former state-owned company or enterprise are transferred or hired by the restructured new company, and unless they exercise management authority on behalf of the state-owned investment entity, they are not regarded as state staff. Finally, the appointee must represent the state-owned units to exercise state management power in non-state-owned units.
On April 29, 2000, the National People's Congress Standing Committee (NPCSC) made a legislative interpretation of other persons engaged in public affairs according to law. Grass-roots organizations such as villagers' committees assist the government in seven kinds of administrative work, which belong to "other personnel engaged in public affairs according to law" and can become the main body of corruption and misappropriation of public funds.
The "state functionaries" stipulated in the above-mentioned laws all have a common feature, that is, they must "engage in public affairs". The minutes of the Supreme Court stipulate that "engaging in official duties refers to performing organizational, leadership, supervision and management duties on behalf of state organs, state-owned companies, enterprises, institutions and people's organizations. Official duties are mainly manifested in public affairs related to authority and the responsibility of supervising and managing state-owned property. "
"The subject of the crime of misappropriating public funds is" national staff ". In addition to "national staff", the subject of corruption also stipulates that persons entrusted by state-owned units to manage state-owned property can also become the subject of corruption. In other words, the subject scope of corruption crime is greater than embezzlement crime. Although these people are neither state employees nor people regarded as state employees, the law specifically stipulates that they can become the subject of corruption. It is worth noting that these people cannot be the subject of the crime of misappropriating public funds, because there is no special provision in the law, and "there is no express provision in the law that does not constitute a crime". This point is more clear in the Supreme People's Court's "Reply on how to convict the personnel entrusted with the management of state-owned property for misappropriating state-owned funds". If these people misappropriate state funds, they can only be convicted of misappropriation of funds, not embezzlement of public funds.
The position of state functionaries is obtained by improper means, which does not affect the identification of state functionaries in criminal law. However, if a person pretends to be a state functionary to engage in activities, he cannot become a state functionary in criminal law. If his behavior constitutes a crime, he can only be punished in accordance with Article 279th of the Criminal Law. On March 30, 2004, the Supreme People's Court Research Office replied to the Beijing Higher People's Court with the document Fa Yan [2004] No.38: "If an actor takes advantage of his position to commit acts of corruption, bribery and misappropriation of funds of his own unit after taking up the post of state functionary by forging official documents and certificates of state organs, which constitutes a crime, he should be convicted and punished for the crime of forging official documents and certificates of state organs and the corresponding crimes of corruption, bribery and misappropriation of public funds.
Second, the subjective aspects of the crime of corruption and misappropriation of public funds
Theoretically, it is generally believed that the key difference between the crime of corruption and the crime of misappropriating public funds lies in whether the perpetrator has the intention and purpose of illegally occupying public funds subjectively. Although the subjective aspects of the crime of misappropriating public funds and the crime of corruption are intentional, the intentional content is different. The crime of misappropriating public funds is illegal occupation of public funds, and its purpose is to illegally obtain the right to use public funds. The crime of corruption is illegal possession of public property, and its purpose is to illegally obtain the ownership of public property, that is, to illegally occupy public property forever.
If the actor absconds with public funds after obtaining them by "misappropriation", squanders public funds and uses them for illegal and criminal activities, so that public funds cannot be returned (Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Misappropriation Cases stipulates: "The amount of misappropriated public funds is huge and cannot be returned before the judgment of first instance due to objective reasons." It can be seen that the "non-return" stipulated in the criminal law does not include subjective and intentional non-return, which is undoubtedly punished as corruption), indicating that the act has actually possessed the intention of illegally possessing public property and should be convicted of corruption.
If the perpetrator absconded with misappropriated public funds and surrendered himself, he should be treated differently according to the situation. If the actor absconded with the misappropriated public funds and surrendered himself, and tried to actively return the misappropriated public funds, he should surrender himself for the crime of misappropriation of public funds. Because in this case, the actor has no purpose of illegally occupying public funds. If the perpetrator absconded with misappropriated public funds and squandered them, but he was unable to return them for free, and he did not actively raise money to return them after surrendering, or he could not actually raise money to return them, it can be considered that he had the purpose of illegal possession, and the circumstances of his surrender can only be considered as surrendering after committing corruption.
According to the principle of the unity of subject and object, although the key difference between the crime of corruption and the crime of misappropriating public funds lies in the subjective psychological state of the perpetrator, the subjective judgment of the crime cannot be separated from objective facts such as behavior and result. Therefore, if there is sufficient evidence to prove that the perpetrator has adopted the means of corruption, so that the misappropriated public funds cannot be reflected in the financial accounts, his behavior should be punished as corruption. For example, after misappropriating public funds, the actor adopts means such as making false accounts and destroying accounts, which makes it difficult to reflect the misappropriated public funds in the financial accounts of the unit and fails to return them, and should be convicted and punished for corruption. For another example, if the actor intercepts the unit's income and illegally occupies it, which makes it difficult to reflect the occupied public funds in the unit's financial accounts, and there is no return behavior, it can be determined that the actor has the purpose of occupying public funds, and should also be convicted and punished for corruption.
In addition, according to the provisions of Article 394 of the Criminal Law, state functionaries who accept gifts in domestic official activities or foreign exchanges shall turn them in according to law, and those with a large amount shall be convicted and punished for corruption.
Third, the object of embezzlement and corruption
Both the crime of misappropriating public funds and the crime of corruption violate the integrity of duty behavior, but the difference between them is also obvious. The crime of misappropriating public funds and the crime of corruption have violated the property rights of the public to varying degrees. The crime of corruption infringes on the four rights of possession, use, income and disposal of public property, while the crime of embezzlement infringes only on the right of possession, use and income of public funds. The crime of corruption infringes the ownership of public property, while the crime of misappropriating public funds infringes only the right to use public property.
Fourth, the objective aspects of embezzlement and corruption.
The crime of misappropriating public funds is objectively manifested in three kinds of behaviors of taking advantage of one's position: first, misappropriating public funds for personal use, engaging in illegal activities, that is, misappropriating public funds for oneself or others, engaging in illegal gambling, drug abuse, whoring and other illegal businesses, usury and other acts prohibited by national laws and administrative regulations; Second, those who misappropriate a large amount of public funds and engage in profit-making activities, including doing business and buying stocks, returning misappropriated public funds to individuals in business activities, and depositing public funds in banks and other financial institutions to obtain interest and profit income. Third, the amount of misappropriation of public funds is relatively large, and it has not been returned for more than three months. As long as the actor's behavior conforms to any of the above three situations, it constitutes the crime of misappropriation of public funds.
The objective aspect of the crime of corruption is to take advantage of his position to illegally occupy public property by means of corruption, theft and fraud. Note: Taking advantage of his position means that the actor uses his authority to take charge of, handle and manage public property within the scope of his duties, and illegally occupies public property under the guise of performing his duties, instead of taking advantage of some convenience brought by his working relationship or subject status, such as being familiar with the criminal environment because of his working relationship and entering and leaving some organs and units by virtue of his staff status. Supervision refers to the subject's power to control public property, treatment refers to the subject's power to collect and spend public property, and management refers to the subject's power to guard or keep public property. Public property: including state-owned property, collective property, social donations or special funds used for public welfare undertakings such as poverty alleviation, including not only the principal of the property, but also the fruits it produces.
The crime of misappropriating public funds and the crime of corruption have different manifestations. The crime of corruption is objectively manifested in the use of corruption, theft, fraud and other methods to take public property as one's own, while corruption refers to the illegal transfer of public property managed or handled by the actor to himself. For example, concealing or detaining the public property managed or handled by oneself, failing to hand in what should be handed in, failing to pay what should be paid, and failing to record what should be recorded; Reselling or giving away the public property that they manage, use or handle, or taking the recovered money, stolen goods and fines for themselves or illegally using them for other purposes. Theft of property refers to the behavior that the actor secretly steals the public property he manages by taking advantage of his position, which is usually called "inside job stealing". If the perpetrator only uses the condition of being familiar with the situation of the unit to steal the property managed by other personnel, it constitutes theft. Cheating property refers to the behavior that the actor takes advantage of his position to fabricate facts or conceal the truth, and illegally occupies public property. For example, the actor falsely reported or lied about expenses, or lied about working hours or forged payroll to claim wages. Other methods refer to other methods of illegal possession of public property except corruption, theft and fraud, such as: using authority to deposit public funds in the bank in the name of individuals and taking interest as their own; Another example is: national staff take advantage of their positions and use their own employees to seek benefits for themselves.
Because actors often cover up their criminal facts by destroying, altering or forging documents and accounts, it is difficult to find that public property has been illegally embezzled in real life. Therefore, when handling a case, we should pay attention to the essence, not just the appearance. Sometimes, although the actor takes some false means to deal with the audit of accounts by relevant parties, it is objectively impossible to really balance the accounts, and public funds cannot be illegally occupied by him, so he should still be convicted and punished for embezzlement of public funds.
The crime of misappropriating public funds is manifested in the unauthorized decision to use the public funds of the unit. Although some deception means are sometimes adopted, generally, misappropriation, theft, fraud and other means are not adopted. In the case of misappropriation of public funds, the actor usually leaves traces on the account books, even loan vouchers, because the misappropriated public funds will eventually be returned. Therefore, the perpetrator generally does not resort to forging documents, destroying accounts and other means. The fact that public funds have been misappropriated can be found through auditing.
The target of crime is different. According to Article 384 of the Criminal Law, there are two kinds of objects of the crime of misappropriating public funds: one is public funds; Second, funds and materials used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief, referred to as specific funds and materials. The object of the crime of misappropriating public funds is generally public funds, and "public funds" as its name implies refers to public funds. According to Article 91 of the Criminal Law, public funds should refer to: first, state-owned funds; Second, the money collectively owned by the working people; Third, social donations or special funds for public welfare undertakings such as poverty alleviation. Private funds managed, used and transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations shall be regarded as public funds. In a typical sense, public funds are expressed as currency, including RMB, RMB foreign exchange certificates and foreign exchange; Bills of exchange, promissory notes, checks, stocks, bonds and other securities are special forms of public funds. Because securities directly represent a certain amount of money. The object of the crime of corruption is all public property, including public funds and public property, and its scope is far greater than the crime of misappropriating public funds.
Since the constitutive requirements of a crime are the only legal standard for this crime and that crime, this paper mainly describes it from four aspects, of which the subjective and objective aspects are the main aspects to distinguish the two crimes, and the differences between the subjects can not be ignored. This paper should pay attention to the subtle differences in the subject scope of the two crimes and the specific definition of state functionaries in modern law and practice; The subjective aspect of the two crimes is the key difference between the two crimes and an important standard to distinguish them. In theory, the two crimes are distinguished by "possession" and "possession", but in practice, the proof standards of possession and possession are different. The conclusive view is summarized by authoritative scholars as a model experience, which is mentioned in this paper. I won't repeat it here. Due to the speed of current events and the lag of legal provisions, I can only analyze specific problems in specific operations. The object of crime has far-reaching significance mainly from the perspective of legislation and theoretical analysis, but it is not obvious in practice, and scholars rarely comment on it in practice; The objective aspects of the two crimes are: the specificity of the object "public funds" and "public property", the variability and technicality of behavior. Nowadays, the "version" of criminal means and methods is still escalating, and judicial law enforcement still has a long way to go.
The high incidence of duty crimes is one of the side effects of economic development. When the people of the whole country are concentrating on prospering the national strength, the wind of corruption is coming quietly, so some people are knocked down by sugar-coated shells, bow to money, be captured by interests, and finally stand in the dock of the court. This is a thought-provoking question-why do people in power still give orders?
A classic case study of Wu Shaozhi, a famous lawyer;
Brief introduction of the case: the manager of the warranty branch (hereinafter referred to as the bus company) of Shanghai Gong * * * Transportation Holding (Group) Co., Ltd. used his position to transfer 654.38 million yuan of public funds of his unit to Wang in his own name for profit-making activities. Later, Chen Mou escaped for committing other crimes. During his escape, he contacted Liu and asked for the return of the money of 654.38 million yuan. Liu gave 654.38+ten thousand yuan three times, knowing that he was at large, but thought he helped himself. After Chen Mou was arrested and brought to justice, more than 654.38 million yuan has been squandered by Chen Mou. The case has now ended in the second instance and was defended by Wu Shaozhi, a famous criminal lawyer. The intersection of the two crimes is the identification of corruption and embezzlement.
Combined with the above theoretical analysis, the above case was sentenced to fixed-term imprisonment of 10 years by a district court in Shanghai for corruption. The reasons are as follows: 1. At first, he deliberately transferred public funds to Wang, but later, during his absconding, he changed the nature of public funds back and became his own. 2. According to Article 6 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds, anyone who absconds with misappropriated public funds shall be punished as a crime of corruption. During Chen Mou's absconding, he first transferred the public funds to others for use, and then recovered the misappropriated public funds. His behavior can be regarded as embezzlement and escape, so he is punished as corruption.
Chen Mou refused to accept, and entrusted Wu Shaozhi, a senior lawyer of Beijing Bangdao Law Firm, as the defender of the second trial. Wu's defense opinion is that this 6.5438+million yuan should be convicted of embezzlement, and its reasons are: 654.38+ 0. The subjective intention of the crime of embezzlement should be based on the subjective state of the perpetrator when committing the crime. After misappropriating public funds, Wang turned to him for help during his absconding due to other events. This is one of the reasons why Chen Mou's embezzled public funds have not been returned so far, not the main reason. And the money can be refunded, but it doesn't belong to the king or anyone else. Now Chen Mou has gone through the formalities of returning with the company, and the money can be returned one day. Therefore, Chen Mou's subjective intention of not committing corruption is inconsistent with the objective requirement of "permanent possession". The money claimed has nothing to do with misappropriation of public funds. The behavior of "asking for money" belongs to the creditor's right relationship with Wang, that is, his personal behavior has nothing to do with his position. Therefore, this sum of money is not based on the situation of "absconding by misappropriating public funds" in Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Misappropriation Cases. In other words, the money requested from Wang is all the money of Wang and does not have the nature of public funds; Secondly, Chen Mou is a fugitive and no longer has the status of a national staff member. The principle of legally prescribed punishment for the crime of taking advantage of one's position requires that the law does not expressly stipulate that it does not constitute a crime, and the law does not expressly stipulate that it will not be punished, and analogy is prohibited. Therefore, the provisions of duty crime cannot be applied.