I. Anti-fraud
In 2008, the Ministry of Finance, together with the CSRC, the National Audit Office, the China Banking Regulatory Commission and the China Insurance Regulatory Commission, formulated the Basic Standards for Internal Control of Enterprises, which was implemented within the scope of listed companies from July 1 2009 to encourage large and medium-sized unlisted enterprises to implement them.
The Basic Standards for Internal Control of Enterprises does not give a specific concept of "anti-fraud", but in Article 42, four key situations of anti-fraud work of enterprises are defined: (1) Unauthorized or other illegal ways are used to occupy or misappropriate enterprise assets and seek improper benefits. (2) False records, misleading statements or major omissions in financial accounting reports and information disclosure. (3) Directors, supervisors, managers and other senior managers abuse their powers. (4) Relevant institutions or personnel collude in fraud. Internal Control Standard for Small Enterprises issued by the Ministry of Finance in 20 17.
Second, legislative interpretation
Article 27 1 of the Criminal Code is about the crime of embezzlement by taking advantage of duty and its punishment.
According to the provisions of the criminal law and the general theory in academic circles, the crime of duty embezzlement refers to the behavior of employees of companies, enterprises or other units who illegally take possession of the property of their own units by taking advantage of their positions, and the amount is relatively large.
Criminal Law Amendment (XI) in 2020
case
On the morning of 20 18 10/8, Song Zhe and Xiu Yule were sentenced in the first instance of Chaoyang Court in Beijing. The defendants Song Zhe and Xiu Yule were sentenced to six years and three years respectively for committing the crime of embezzlement.
The court found through trial that the defendant Song Zhe took advantage of his position as general manager and Wang Baoqiang's agent when he was working in Wang Baoqiang (Shanghai) Film and Television Culture Studio from 20 14 to 20 16, and took advantage of his position as general manager and's agent to repair Yule alone or together with the defendant, and used the means of falsely reporting the performance and advertising endorsement fees to occupy the business expenses of Wang Baoqiang's studio, including RMB 232.5.
The court held through trial that the defendant Song Zhe, as a company employee, took advantage of his position to occupy the property of the unit; Defendant Xiu Yule formed an agreement with Song Zhe in the process of committing a crime and provided him with help, which constituted a * * * criminal in Song Zhe. Both of them constitute the crime of duty embezzlement,
I. Actors
(1) Special status
The subject of behavior is the subject of criminal acts stipulated in the criminal law. A crime whose constitutive requirements require a natural person to have a special status, and a crime whose punishment is aggravated and mitigated on the premise of having a special status, is called an identity crime.
According to the provisions of the specific provisions of the Criminal Law, the crime of duty embezzlement is a crime with a special identity as its constitutive elements, and its main actors include: (1) staff of companies, enterprises or other units (Article 27 1 of the Criminal Law); (2) Employees of insurance companies (article 183 of the Criminal Law). The unit does not constitute the subject of this crime.
For example, applying for a job as a unit employee with a false identity, and then taking advantage of his position, illegally taking the property of the unit as his own, and establishing the crime of job embezzlement.
Another example is to become the person in charge of the company through a fictitious resolution of the shareholders' meeting, and then take advantage of his position to take the company's property for himself and establish the crime of occupational embezzlement.
For another example, people who sell products in enterprises, whether they receive fixed wages or commission according to sales performance, whether they are regular employees, contract workers or temporary workers, can become the subject of the crime of job embezzlement as long as they take advantage of their positions.
(2) The injured unit
Units in criminal law include both criminal units as criminal subjects and injured units as victims. The concept of "unit" of unit crime stipulated in Article 30 [4] of the Criminal Law is not consistent with that of the crime of duty embezzlement in Article 271, paragraph 1 of the Criminal Law. The former refers to the "unit" that should be investigated for criminal responsibility as the subject of the crime, while the latter refers to the "unit" whose property is infringed and needs criminal law protection, and the responsibility is investigated for individuals in the "unit".
It is generally believed that because individual industrial and commercial households are not companies, enterprises or other units, their employees cannot be the subject of this crime.
"Other units" should not be narrowly understood. Referring to the Opinions on Commercial Bribery Cases, "other units" include not only permanent organizations such as public institutions, social organizations, villagers' committees, residents' committees and villagers' groups, but also non-permanent organizations such as organizing committees, preparatory committees and engineering contracting teams established for organizing sports events, cultural performances or other legitimate activities. Whether other temporary organizations not listed, such as creditors' meetings and liquidation groups, belong to other units needs to be grasped in practice.
Case (202 1): Yun 26, sentence ending No.240.
The court held that the appellant Li Jiazinc and his defender put forward that Li Jiazinc's identity did not meet the appeal and defense opinions of the subject of the crime of occupational embezzlement. After investigation, several witnesses in the case confirmed that Li Jia-zinc claimed to be the deputy general manager of Woma Company when she was doing business abroad, and had actually performed this position, taking charge of the cannabis cultivation and promotion of Woma Company.
The above witness testimony, Li Jiazinc's confession and the registered payroll roster and Li Jiazinc's bank flow confirm that Li Jiazinc received salary in Woma Company, which is enough to confirm that there is a de facto labor relationship between Li Jiazinc and Woma Company, and has actually fulfilled the responsibility of the deputy general manager of Woma Company to be responsible for the company's cannabis cultivation and promotion, and his main identity conforms to the main elements of the crime of occupational embezzlement.
Case (2020) Yue 197 1 Criminal Chu No.899
It was found through trial that since 20 17, Xie Haibo took advantage of his position to collect the client's funds, but did not turn them over to the company, and * * * encroached on Dongguan Jucheng Accounting Service Partnership 48 1 103 RMB. The court believes that the defendant Xie Haibo illegally took possession of the property of the unit for the purpose of illegal possession, taking advantage of his position, and the amount was large, which constituted the crime of duty embezzlement.
Second, the subjective aspect
Subjectively, this crime is direct and intentional, and it has the purpose of illegally occupying the property of companies, enterprises or other units.
Case (20 15) Chuanxingtizi No.2
We believe that the objective fact that the defendant in the original trial, Yang, is a staff member of SF Company and has the convenience of handling the property of SF Company meets the main requirements of job occupation. Secondly, SF Company legally occupies and controls the property involved in the case delivered by the shipper based on the express delivery contract, and is liable for the loss of the property, and the property involved should be regarded as the property of SF Company. Finally, as a staff member of SF Company, Yang was arranged by SF Company to be responsible for the sorting of express parcels of the company, specifically handling the property involved, and had temporary actual control over the property of his unit. He took advantage of his position to illegally take the property for himself, and his behavior was in line with the criminal characteristics of the crime of duty embezzlement. However, because the value of the occupied property 1999 yuan did not reach the conviction starting point of the crime of duty embezzlement, he was not convicted of the crime according to law.
Case (20 15) No.515, the final word of criminal resistance in the second sentence.
From April to 20 10/February, 2009, the appellant (defendant in the original trial) Zhang Shougang took advantage of his position as assistant to the general manager of the fixed income department of Zhongrong Trust Company, and relied on the qualification and credit of Zhongrong Trust Company and the trading platform provided by the company to find capital customers and bond customers in the inter-bank bond market respectively to engage in bond matching transactions. During the transaction, Zhang Shougang manipulated Fenglian Company, which he actually controlled, to conduct transactions related to Zhongrong Trust Company by designing the transaction flow and adding transaction links, and transferred the benefits due to Zhongrong Trust Company to Fenglian Company, totaling more than 207 million yuan, which was later illegally possessed by individuals. We believe that Zhang Shougang, as a staff member of the company, took advantage of his position to illegally take the property of his unit as his own, and his behavior has constituted the crime of duty embezzlement.
Case (2020) Hu 0 1 13 No.955 at the beginning of punishment.
It was found through trial that:
1, 201From September to April, 2020, the defendant He Mou used his position convenience to induce a certain company to pay the payment to the supplier in order to raise gambling money, and then fabricated false reasons to ask the supplier to return part of the payment to his personal bank account, and embezzled the payment by the above means 190.
2. In March 2020, the defendant He Mou lied that he needed to pay the payment, and induced Li Mou2, the legal representative of a certain company, to pay the payment of160,000 yuan to He Mou's related party, and then the related party transferred it to his personal account.
With regard to the conviction of this case, our court believes that the defendant He Mou, as a company employee, took advantage of his position to purchase goods and pay for goods, and transferred the payment of goods1900,000 yuan from the company account to his personal account, which is an act of defrauding the company of money by taking advantage of his position, and should be recognized as the crime of embezzlement. However, the defendant He Mou lied to pay the purchase price and defrauded160,000 yuan from the victim Li, which is not a duty behavior and should be recognized as fraud.
Case (2008) No.682 of HuYizhong Criminal Final Word [12]
Defendant Li Jiang is the driver of Shanghai Shanghai-Shenzhen Air Freight Service Co., Ltd. (hereinafter referred to as Shanghai-Shenzhen Airlines Company). At 4 o'clock in the afternoon of 1 month 12, 2008, Li Jiang stole 30 commemorative gold coins of the Year of the Rat of Plum Blossom (with a total value of RMB160,000 yuan) entrusted by the shipper from the sealed box in the van.
The focus of the dispute in this case is whether the defendant Li Jiang's behavior constitutes the crime of duty embezzlement or theft.
The Shanghai No.1 Intermediate People's Court held that the difference between theft and duty embezzlement lies in whether the perpetrator took advantage of his position when committing the crime.
The carrier of general cargo transportation not only has the responsibility to deliver the goods to the destination safely and timely, but also has the obligation to keep the goods directly. The act of a freight driver stealing goods by taking advantage of his position of transporting and keeping goods during transportation constitutes the crime of duty embezzlement.
In practice, the crime of duty embezzlement is applied first instead of the crime of theft if the labor tools, products and express articles are stolen by taking advantage of their position conditions. This is actually to understand the behavior of duty embezzlement as including theft, that is to say, once the perpetrator takes advantage of his position, even if there is theft, he will be convicted and punished according to duty embezzlement.
Case (202 1) Guangdong 0307, No.2634 at the beginning of punishment.
From April to May, 2002/KLOC-0, the defendant Zhu Chuanjian took advantage of his position as a warehouse keeper in the South China City office of Pinghu Street, Longgang District, Jiangxi Shangyou County Jiayi Lighting Products Co., Ltd., and was responsible for managing the copper wires in the office, and took the means of piracy to steal a large number of copper wires from the office. And through the WeChat channel, he contacted the buyers named "Xiyuan" and "Recycling Hardware and Electronic Parts" on WeChat, sold the stolen copper wire to "Xiyuan" and "Recycling Hardware and Electronic Parts", and collected RMB 77,930 from the sale of copper wire, all of which were used by Zhu Chuanjian for illegal activities such as online chess and card gambling.
The People's Court of Longgang District, Shenzhen City held that the defendant Zhu Chuanjian's behavior constituted the crime of embezzlement.
Chapter III Punishment of the Crime of Duty Embezzlement
I. Standards for filing a case for prosecution
According to the first paragraph of Article 271 of the Criminal Law, whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than 3 years 10 years and fined; If the amount is especially huge, he shall be sentenced to fixed-term imprisonment of not less than 10 or life imprisonment and fined.
The amount between 60,000 yuan and/kloc-0,000 yuan is a "large amount". Before the amendment of the law, the statutory penalty of fixed-term imprisonment of not more than five years was applied, while after the amendment of the law, the statutory penalty of fixed-term imprisonment of not more than three years was applied. According to this analysis, after the criminal law amendment (11) comes into effect, before the corresponding judicial interpretation is issued, the actor can get leniency according to the principle of "being lenient with the old". At the same time, the upper limit of the basic statutory punishment is reduced to fixed-term imprisonment of less than three years, which leaves room for meeting certain conditions, possibly applying for bail pending trial and being sentenced to probation.
Second, sentencing guidance
According to the Guiding Opinions on Sentencing of Common Crimes (Trial) (Fa Fa Fa [2021] No.21), if the crime of duty embezzlement is constituted, the starting point of sentencing shall be determined within the corresponding range according to the following circumstances:
(1) If the amount reaches a relatively large starting point, the starting point of sentencing shall be determined within the range of fixed-term imprisonment and criminal detention of less than one year.
(2) If the amount reaches a huge starting point, the starting point of sentencing shall be determined within the range of three to four years of fixed-term imprisonment.
(3) If the amount reaches a particularly huge starting point, the starting point of sentencing shall be determined within the range of ten to eleven years of fixed-term imprisonment. Except for those who should be sentenced to life imprisonment according to law.
On the basis of the starting point of sentencing, according to the amount of occupation and other criminal facts that affect the composition of the crime, the penalty amount is increased and the benchmark penalty is determined.
If the crime of duty embezzlement is constituted, the amount of the fine shall be determined according to the amount of duty embezzlement, harmful consequences and other criminal circumstances, and the defendant's ability to pay the fine shall be comprehensively considered.
If the crime of duty embezzlement is constituted, the application of probation shall be decided by comprehensively considering the amount, means, harmful consequences, restitution and other criminal facts, sentencing circumstances, as well as the defendant's subjective malignancy, personal danger, confession and repentance.
In practice, trading discounts generally involve suppliers, counterparties and trading middlemen, so the occupation by using "discounts" can be summarized as follows:
(1) fake discount
Case (20 14): Foshun Fa Chu ZiNo. 1898
Referee's gist:
The defendant privately increased the company's discount to the counterparty, which caused the counterparty to pay more for the goods. The defendant provided the bank account he controlled to the counterparty to accept the goods. Later, the defendant transferred the actual goods to his company, and the defendant invaded the counterparty to pay more for the goods, which constituted occupation.
Basic case:
During the period from February 20 10 to February 20 1 1 year 1 month, the defendant cen moumou privately increased the discount given by the supplier furun furniture factory (hereinafter referred to as furun factory) to the imperial company, which caused the imperial company to pay the furun factory more. When the overpaid payment reached a certain amount, Cen Moumou remitted the payment to the finance of Huangchao Company by providing the private account of "Hong Moumou" he manipulated, and then he transferred the actual payment to Furun Factory, from which he extracted and occupied a part of the payment. During the above-mentioned period, Cen Moumou * * * encroached on the payment of RMB 56,846 paid by the imperial company to Furun Factory.
(2) Concealing the discount
Case (20 16) Jing 0 105 Chu Chu 1830
Referee's gist:
The defendant concealed the preferential discount policy of his company from the counterparty, and then pretended to be the counterparty to obtain the advance payment returned by the company, which constituted job occupation.
Basic case:
In April, 20 14, the defendant, Ye X, took advantage of his position when negotiating with China x2 Group Beijing Co., Ltd. about the leased network line, concealing the preferential policy that he could enjoy a 35% discount when paying the one-year fee to x2 Company in advance. After signing the lease contract of network private line with x2 Company in the name of xx Logistics (Beijing) Co., Ltd., he signed the prepayment refund agreement with x2 Company in the name of Beijing x3 Technology Development Co., Ltd. privately, and asked x2 Company's salesman Wu X to convert the prepaid card with the face value of 1 14744 yuan into cash and put it into his personal bank account. On May 29th, 20 14, Houwu× credited 103275 RMB to Yex's bank card.
(3) Fake counterparty
Case (20 16) Guangdong 03 sentence 1 140 No.
Referee's gist:
The defendant impersonated the individual order as a store order that can enjoy discount or even ex-factory price, and encroached on the price difference of the company's payment from it, which constituted job occupation.
Basic case:
XXX Company is a company engaged in furniture production and sales. Its product sales modes are divided into two types. One is store sales, which are set up in different cities by franchisees who act as agents for their products. Considering the large investment cost of franchisees to set up stores, XXX Company generally gives stores more than 3.5 fold of the ex-factory price in order to broaden the market. The other mode is that the company directly sells products to end customers (that is, scattered customers), and its sales price is obviously higher than that of specialty stores, generally more than 70% off the ex-factory price (the lowest is 6.8% off).
When the defendant Kang was the manager of the second sales department of XXX Company, the area in charge was East China, and the flagship store in Shanghai and Yuexing store in Wuxi, Jiangsu Province were all managed by Kang. From March of 20 13 to February of13, the defendant Kang took advantage of his position to place orders with XXX company in the name of Shanghai flagship store and Jiangsu Wuxi Yuexing specialty store, thus encroaching on the price difference of the company.
(4) Fake middlemen
Case (20 19) Hu 0 104 No.844 at the beginning of punishment.
Referee's gist:
The defendant pretended that the third-party company he controlled was the agent of the defendant's company, and embezzled the sales money of the defendant's company by taking advantage of the opportunity that the agent could apply for the purchase discount and get the sales rebate. Later, the defendant took advantage of his position to cash in the so-called "agent" company he controlled, and his behavior constituted job occupation.
Basic case:
From March 20 17 to May of the same year, the defendants Yu Mou and Kong Moumou formed a partnership with each other, and used their respective positions to increase the sales links during the period when Colombia Sportswear Trading (Shanghai) Co., Ltd. (hereinafter referred to as Columbia Company) purchased commercial software products from the commercial company, and assumed Shanghai Yuke Information Technology Co., Ltd. (hereinafter referred to as Yuke Company) as the agent of the commercial company, so that the agents could purchase goods and send them at low prices.
(5) False discount purposes
Case (20 10) Yong Ci Xing Chu Zi No.550
Referee's gist:
By taking advantage of his position, the defendant lied to his company that he sold the products according to the sales channels designated by the company and obtained preferential price permission. Later, the defendant actually sold them to other companies at a price higher than the preferential price, and his embezzlement of the difference in payment for goods constituted occupation.
Basic case:
On October 25th, 2007, defendant Li Shuai signed a product purchase and sale contract with Gansu Rongteng Electric Appliance Co., Ltd. on behalf of Ningbo Fangtai Kitchenware Co., Ltd. (hereinafter referred to as Fangtai Company), which was agreed to start from October 25th, 2007 to February 26th, 2008. Xiangrongteng Company of Fangtai Company sells 9000 sets of water heaters and range hoods, but this batch of products (hereinafter referred to as engineering machines) can only be used in Gansu living base of Qinghai Petroleum Administration Bureau and cannot be sold in other channels, and the sales price, model and delivery place of the products are agreed.
Defendants Li Shuai and Sun Wei, together with Defendant Tao Jianlin, took advantage of their positions as managers of Fangtai Company, falsely claimed to the headquarters of Fangtai Company that they were selling the construction machines to Rongteng Company, and asked the head office to deliver the goods out of the warehouse at the price of the construction machines, but actually sold them to other companies at a price higher than that of the construction machines, thus embezzling the difference.
Second, the project manager's occupation behavior
The project manager of a construction enterprise (hereinafter referred to as the project manager) refers to the project manager who is entrusted by the legal representative of the enterprise and is fully responsible for the construction process of the project.
The project manager is the person in charge of the project management team of a construction project appointed by the construction enterprise.
The project manager is not a technical post, nor a "technical title", nor a professional qualification, but a management post. He is a manager in an organizational system, and whether he has human rights, financial rights and the right to purchase materials and equipment should be decided by the management of his enterprise.
Construction enterprises in our country implement the project manager responsibility system when managing construction projects. The project manager responsibility system refers to the target responsibility system of construction project management with the project manager as the main body of responsibility.
Case 0 1(202 1) Zhejiang 0282 Early Punishment 1346
In the second half of 20 19, the defendant Liu Jun joined xx Construction Group Co., Ltd. as the project manager of Ningbo Zhouxiang Project Department. During 2020, the defendant Liu Jun took advantage of his position as the project manager to occupy the company's property in the following ways: selling the cigarettes used by the company for work reception to Cixi xx tobacco and liquor store, and getting RMB 5400; After collecting the road repair fee paid by Cixi xx Construction Company to Wanyang Company of RMB 20,000, it was not paid into the financial account; In the name of project entertainment, after falsely issuing cigarette invoices from xx daily-use department store in Zhouxiang, Cixi City, the company was reimbursed financially, and the amount of money received was RMB 5.180,000 yuan; The company's electric meter was externally connected to Cixi xx Construction Company for use, and the fee was collected. After the payment was 42,000 yuan, it was not paid to the financial department. The above sum * * * is RMB 1 1.9 million yuan, which is used by defendant Liu Jun for daily consumption.
Case 02(202 1) Shanghai 0 104 No.807 at the beginning of the punishment.
On February 20 17, the defendant Xu Mingming joined Shanghai a co., ltd (hereinafter referred to as Wuhuama company) and served as the project manager of Xuzhou sanpower plaza of Wuhuama company, responsible for project site management and expense settlement. 20 17 From July to September, Xu Mingming withheld the labor fee that should have been paid to the project subcontractor after requesting money from Wuhuama Company, amounting to RMB139,000 yuan.
Case 03(202 1) Yue 049 1 Early Punishment 14
Defendant Kang Xiang joined Shenzhen Guangning Co., Ltd. as a project manager on June 3, 20 19, and was assigned by the company to Zhuhai Hengqin International Financial Center Project, whose main responsibilities were project management and various related businesses. From August to September, 2020, the defendant Kang Xiang used his warehouse key to open the company's temporary warehouse on the top floor of Hengqin International Financial Center, and moved 16 audio equipment stored in the warehouse from the warehouse for three times, and mortgaged the audio equipment to others by means of logistics express delivery, earning RMB 86,800. Kang Xiang used the money for personal debt repayment and online gambling.
Case 04(202 1) Zhejiang 1002, Early Punishment 134
From March to July, 2020, the defendant Xu Jun took advantage of his position as the project manager of Taizhou Branch of Songyuan Ruijia Decoration Co., Ltd., and received the labor and material fees from the company's person in charge, Li 1, and lied to the workers that the company had not paid them. After taking over the project privately, he collected the materials from the cooperative material supplier in the name of the company, and illegally occupied the company's property worth RMB 374,759.
Case 05(20 19) Ji 022 1 Criminal Chu No.254
On June 20 17 10, the defendant Cao Rui signed an employment contract with Kangxiang Company located at Room 323, Jilin (China-Singapore) Food District Headquarters Building, Chaluhe Town, Yongji County, Jilin Province. Kangxiang Company authorized the defendant Cao Rui to be responsible for the construction management of Huaye International Construction Project in yakeshi, Inner Mongolia and the authorization matters in the steel sales contract signed between Kangxiang Company and Hongyuan Company. 201July 6, 2007 16, the steel sales contract signed between Kangxiang Company and Hongyuan Company, in which Jilin Ruirong Real Estate Development Co., Ltd. (hereinafter referred to as Ruirong Company) is the guarantor. Kangxiang Company appointed the defendant Cao Rui to be responsible for applying for the purchase of steel and signing for the steel. Kangxiang Company settled the steel payment with Hongyuan Company according to the quantity and amount of steel signed for by the defendant Cao Rui in accordance with the provisions of the steel sales contract. During the performance of the steel sales contract, the defendant Cao Rui took advantage of his position without the consent of Kangxiang Company. On July 20 17 16, August 5, and August 24, respectively, he privately purchased steel with a total value of 40 1360.58 yuan from Hongyuan Company on credit for three times.
Iii. Company personnel illegally occupy shareholders' equity by taking advantage of their positions.
The reply of the Legal Affairs Committee of the National People's Congress Standing Committee (NPCSC) on how to deal with the behavior of illegal possession of shareholders' equity by company personnel by cheating and other means (Letter from the Legal Affairs Committee (2005) 105) is as follows: According to the provisions of Article 92 of the Criminal Law, shares belong to property. If any illegal means are used to embezzle or occupy the shares enjoyed by others according to law, which constitutes a crime, the provisions of the Criminal Law on the crime of illegally infringing on the property of others shall apply.
Letter about the Law Commission. First of all, the letter from the Law Commission is not a legislative interpretation, but only a legislative explanatory opinion. Second, Article 92 of the Criminal Law stipulates "private property owned by citizens" rather than "unit property". Thirdly, it is not clear which crime is specifically applied to the crime of illegally infringing on other people's property, because the crimes of infringing on other people's property include embezzlement, theft, duty embezzlement, corruption and misappropriation of public funds (funds).
The only thing that is clear or "reiterated" in the opinion of Law Committee 105 is that shares belong to property. Because Article 92 of the Criminal Law stipulates that private property of citizens includes shares, stocks, bonds and other property owned by individuals according to law.
The second important document, the Working Opinions of the Economic Investigation Bureau of the Ministry of Public Security on whether the illegal possession of other people's equity constitutes the crime of duty embezzlement, was issued by the Economic Investigation Bureau of the Ministry of Public Security on June 24, 2005. This opinion pointed out that in recent years, many local public security organs have asked our bureau for instructions on whether it is suspected of the crime of duty embezzlement when the shareholders of the company or the entrusted persons use illegal means to occupy equity. On this issue, our bureau held several symposiums and solicited opinions from relevant departments such as the Supreme People's Procuratorate, the Supreme People's Court and the Criminal Law Office of the NPC Law Committee. Recently, the Second Court of Criminal Trial of the Supreme People's Court gave a written reply to our bureau: if it can be determined that the actor has the subjective purpose of illegally occupying other people's property, the act of illegally occupying the shareholders' equity in the company management by taking advantage of his position can be punished as the crime of occupational embezzlement.
Opinions on the Economic Investigation Bureau of the Ministry of Public Security. First of all, neither the reply of the Second Criminal Court of the Supreme Court nor the opinion of the Economic Investigation Bureau of the Ministry of Public Security is a judicial interpretation.
Second, the views of the Second Criminal Court of the Supreme Court can be divided into three levels. On the first level, we must be able to recognize that the actor has the subjective purpose of illegally occupying other people's property. If there is no purpose of illegal possession, there is no doubt that it does not constitute the crime of occupational embezzlement. On the second level, there is no doubt about taking advantage of his position. The third level, illegal possession of shareholders' equity in company management. Note that this is "company management", not "company ownership".
The property of this unit not only refers to the property owned by the unit, but also includes the property that the unit occupies, manages, uses and transports according to law or agreement.
The Supreme People's Procuratorate issued a typical case in 20 19. In the case of Huang and Duan's job embezzlement, the procuratorate pointed out that in practice, there has always been a dispute about whether the company "owns" or "holds" the property of the company. From the point of view of infringement of legal interests, no matter whether it encroaches on "all" or "holding" the property of the unit, it essentially infringes on the property right of the unit, and its subjective and objective behavior characteristics and social harmfulness can be evaluated uniformly. Referring to the stipulation of "public property" in the second paragraph of Article 91 of the Criminal Law, the property in the management, use and transportation of non-public-owned companies and enterprises should be treated as the property of their own units, and the principle of prosecution for the crime of duty embezzlement and corruption should be consistent, so as to effectively deter the behavior of duty embezzlement, equally protect the property rights of enterprises with different ownership, and earnestly safeguard the normal production and business activities of private enterprises.
For example, the courier company legally occupies and controls the property involved delivered by the shipper based on the courier contract and is liable for the loss of the property. The property occupied by the actor should be regarded as the property of the courier company.
Another example is that a freight driver takes advantage of his position of transporting and keeping goods to steal goods during transportation, which constitutes the crime of duty embezzlement.
Another example is that the shoe company manages and processes the raw materials involved based on the entrusted processing contract, and the purchasing manager takes advantage of his position to illegally take the raw materials he manages for himself, which constitutes the crime of duty embezzlement.
Judicial precedent on the crime of duty embezzlement caused by illegal possession of shareholders' equity;
Case 01:(2018) Jing 0 1 14 Chu Chu 17 1
We believe that the defendant Chen Conghong, as the legal representative, general manager and major shareholder of the company, illegally occupied the shareholders' equity in the management of the company for the purpose of illegal possession, with a large amount of money, and his behavior has constituted the crime of duty embezzlement, which should be punished according to law.
Case 02: (2017) No.53 of the new 22 sentence.
Our court believes that the appellant Shi Cunliang instructed others to forge the signature of "Chen Mou 1" without the consent of shareholder Chen Mou 1, and changed the shares managed by Hami Jiutianhe Real Estate Development Co., Ltd., 50% of which belonged to Chen Mou 1 with a capital contribution of15 million yuan to his own name; Change the shares managed by Hami Friendship Trading Co., Ltd., 50% of which belong to Chen Mou 1 with a contribution of 1 500,000 yuan, to the name of Shimou1; Taking advantage of his position, he embezzled 5.5 million yuan from Hami Jiutianhe Real Estate Development Co., Ltd. by using the method of falsifying the project payment, and * * * encroached on the equity and 5.5 million yuan of property with the capital contribution of16.5 million yuan, which was huge, and his behavior constituted the crime of duty embezzlement, so he should be investigated for criminal responsibility according to law.
Case 03: (2015) Wen Cang Xing Chu Zi No.4
Our court believes that the defendant Gong Youmen ignored the national laws, took advantage of his position as a shareholder and legal representative of the company for the purpose of illegal possession, and instructed the defendant Gong Moujia to forge relevant materials and change Jiang Moujia's shares in the company to his daughter Gong Mouyi's name without authorization. The time value of the shares was huge, and all his actions constituted the crime of duty embezzlement.
Case 04: (2014) No.45, No.2 Final Sentence of Sino-French Punishment in Shantou
Our court believes that the appellant Xunsheng Chen, as the general manager of the company, took advantage of his position to illegally take possession of the company's property with a value of 800,000 yuan, which is huge, and his behavior has serious social harm, which has constituted the crime of duty embezzlement, and he should be investigated for criminal responsibility according to law.
From 20 14 to 20 19, all the above cases were convicted of "the crime of occupational embezzlement" according to the reply of the second criminal court of the Supreme Court.
There is also a case of innocence: (20 18) Ning 02, No.54, Ai Moumou's case of duty embezzlement. In this case, the courts of first and second instance found that Ai Moumou was not guilty, and Ai Moumou's behavior did not constitute the crime of occupational embezzlement. The court of second instance also cited the "Working Opinions of the Economic Investigation Bureau of the Ministry of Public Security on whether illegal possession of other people's equity constitutes the crime of occupational embezzlement". This is a case worth discussing.
According to this, some people think that embezzlement of equity does not constitute the crime of occupational embezzlement. In fact, (20 18) ruling No.54 of Ning 02 sentence did not suggest that embezzlement of shares does not constitute the crime of occupational embezzlement.
The court of second instance held that although the existing evidence in this case can prove that Ai Moumou used his position to facilitate the illegal possession of the shareholders' equity of the company, it can't prove that Ai Moumou subjectively had the purpose of illegally occupying other people's property, and it can't prove that Ai Moumou illegally took the property of Zhejiang Ning Company as his own. Therefore, the original judgment found the facts clearly and the applicable law was not improper.
It can be seen that the reason why the court of second instance held that Ai was innocent was that it could not prove that Ai had the subjective purpose of illegally possessing other people's property. The court of the first and second instance did not deny the referee's point of view contained in the reply of the second criminal court of the Supreme Court. It can also be said that in judicial practice, the court's opinion that illegal possession of other people's equity constitutes the crime of duty embezzlement is basically unified.