The crime of misappropriation of funds refers to the staff members of a company, enterprise or other unit who, by taking advantage of their positions, misappropriates the funds of their own unit for personal use or lends them to others, and the amount is relatively large, which has not been repaid for more than three months, or has not been repaid for more than three months. More than three months, but the amount is relatively large, for profit-making activities, or for illegal activities.

1. Object Elements

    The object infringed by this crime is the right to benefit from the use of funds of companies, enterprises or other units, and the object is the funds of the unit. The so-called capital of the unit refers to all the property in the form of currency that is owned or actually controlled and used by the unit.

    2. Objective requirements

    The objective aspect of this crime is that the perpetrator takes advantage of his position to misappropriate the funds of his own unit for personal use or lend it to others. , conduct profit-making activities, or conduct illegal activities, specifically, it includes the following two acts:

    1. Misappropriation of the unit's funds for personal use or loan to others, the amount is relatively large and has not been repaid for more than three months. This is a lesser form of appropriation. Its constitutive feature is that the actor misappropriates the funds of the unit by taking advantage of the convenience of being in charge of the position and handling the funds of the unit, and the purpose is mainly for personal use or lending to others, but not for engaging in illegal economic activities, and misappropriation. The amount is relatively large, and it has not been repaid for more than three months. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Criminal Cases of Violation of the Company Law, such as bribery, embezzlement, misappropriation, etc., the misappropriation of funds of 10,000 to 30,000 yuan from the unit is considered a "large amount".

    2. Misappropriation of the unit's funds for personal use or lending to others, although not more than three months, but the amount is relatively large, for profit-making activities, or for illegal activities. There is no restriction on whether the misappropriation of time exceeds three months and whether it will be refunded after three months. As long as the amount is relatively large and the conduct of profit-making or illegal activities constitutes a crime. The so-called "profit-making activities" mainly refer to activities such as doing business, investing, buying stocks or bonds. The so-called "illegal activity". It refers to the use of misappropriated funds for smuggling, gambling and other activities. The "large amount" here, according to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases in Violation of the Company Law, including bribery, embezzlement, misappropriation, etc., refers to the misappropriation of the company's funds of 5,000 to 20,000 yuan. of.

    As long as the perpetrator has one of the above three acts, he can constitute this crime, and he does not need to have both,

    The above-mentioned misappropriation of funds must be the use of the convenience of the position. The so-called use of the convenience of the position refers to the managers, factory managers, accounting personnel, purchase and sales personnel, etc. , taking advantage of its convenient conditions to manage, allocate, use, and handle the funds of the unit, and use the funds for other purposes.

    3. Main Elements

    The subject of this crime is a special subject, that is, the staff of a company, enterprise or other unit. Specifically, it includes three natural persons with different identities, one is the directors and supervisors of a joint stock limited company and a limited liability company, and the other is the staff of the above-mentioned companies, which refers to managers other than the directors and supervisors of the company, managers of departments and factories, and others General workers. The above-mentioned directors, supervisors and employees must not have the status of state staff. 3. Employees of enterprises or other units other than the above-mentioned enterprises, including employees of collective enterprises, private enterprises, and wholly foreign-owned enterprises, and employees of state-owned companies, state-owned enterprises, Sino-foreign joint ventures, Sino-foreign cooperative joint-stock companies, and enterprises who do not have state work. All other employees in the capacity of personnel and non-state employees who are entrusted by state organs, state-owned companies, enterprises, institutions, and people's organizations to manage and operate state-owned property. A person with the status of a state functionary cannot be the subject of this crime, but can only be the subject of the crime of embezzlement.

    4. Subjective Elements

    This crime can only be intentional in the subjective aspect, that is, the perpetrator knows that he is embezzling or borrowing the funds of the unit and taking advantage of the convenience of his position, but he still does it intentionally.

    identify

    1. The boundary between the crime of misappropriation of funds and the crime of embezzlement

    1. The object and object of the violation are different. The object infringed by the crime of misappropriation of funds is the right to use the funds of a company, enterprise or other unit, the object is the funds of the company, enterprise or other unit, and only refers to money; the object of the crime of embezzlement is the funds of the company, enterprise or other unit Ownership, the object is the property of a company, enterprise or other unit, including both money and things.

    2. Objective performance is different. The behavior of the crime of misappropriation of funds is misappropriation, that is, without legal approval or permission, it is appropriated for their own use or loaned to others; Or illegally occupy the property of the unit by other means. The misappropriation of funds of the unit for illegal activities does not require a "large amount" to constitute a crime; the crime of occupational embezzlement can only be constituted by embezzling the property of the unit in a relatively large amount.

    3. Subjective aspects are different. The purpose of the crime of misappropriation of funds is to illegally obtain the right to use the funds of the unit, but it does not attempt to illegally occupy it permanently, but to return it after use; the purpose of the crime of embezzlement is to illegally appropriate the property of the unit as his own, rather than temporarily.

    2. The boundary between the crime of misappropriation of funds and the crime of misappropriation of public funds

    1. The subject of the crime is different. The main body of the crime of misappropriation of funds is the personnel of the company, enterprise or other unit, excluding the state staff; the main body of the crime of misappropriation of public funds is the state staff.

    2. The object of the violation is different. The object infringed by the crime of misappropriation of funds is the right to use the funds of a company, enterprise or other unit, and the object of the crime of misappropriation of public funds is the right to use public funds, the prestige of state organs, the normal activities of state organs, etc. and serious malfeasance. Therefore, the Criminal Law stipulates the crime of misappropriation of public funds in the special chapter of the crime of embezzlement and bribery in Chapter VIII of the Criminal Law, and the crime of misappropriation of funds in the special chapter of the crime of infringing property in Chapter 5.

    3. The objects of violation are different. The object of the crime of misappropriation of funds is the funds of companies, enterprises or other units, including funds owned by the state or collectively, as well as funds owned by individual citizens and foreign businessmen. The object of the crime of embezzlement is limited to public funds, which are mainly state-owned property and the property of units invested by the state and shareholdings, that is, all funds of state organs, state-owned companies, enterprises, institutions, etc.

    3. The boundary between the crime of misappropriation of funds and the crime of misappropriation of specific funds

    1. The subject of the crime is different. The main body of the crime of misappropriating unit funds is the staff of companies, enterprises or other units, excluding state staff. The main body of the crime of misappropriation of specific funds and properties is generally the directly responsible persons such as those in charge who control and manage specific funds and properties in state organs and other units.

    2. The object of the violation is different. The object of the crime of misappropriation of funds is the right to use the funds of companies, enterprises or other units. The object of the crime of misappropriation of specific funds and properties is the state's right to use the financial management system and public properties used for disaster relief, emergency rescue, flood control, disturbance, poverty alleviation, immigration, and special funds for relief.

    3. The objects of violation are different. The object of the crime of misappropriation of funds is the funds of companies, enterprises or other units. The crime of misappropriation of specific funds and properties targets specific materials used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, and relief, including both the civil affairs funds arranged by the state budget for the above-mentioned purposes, and the temporarily allocated funds. Special funds and materials also include other specific funds and materials donated by the state, collectives or the people for the above-mentioned purposes.

    4. Objective performance is different. The funds misappropriated by the perpetrator in the crime of misappropriation of funds can be used by individuals or lent to others. The crime of misappropriation of specific funds and properties is that the perpetrator uses specific functions and powers to illegally allocate and use specific funds and properties for other purposes without legal approval, and cannot be used for individuals. State functionaries who misappropriate specific funds and properties for personal use shall be given a heavier punishment for the crime of misappropriation of public funds.

    5. Subjective aspects are different. The intentional content of the perpetrator in the crime of misappropriation of funds is that he clearly knows that it is the funds of the company, enterprise or other unit where he belongs, and intends to take advantage of his position to appropriate it for personal use or lend it to others. The intentional content of the perpetrator of the crime of misappropriation of specific funds and materials is that the funds and materials are misappropriated for other purposes, knowing that they are used for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, and relief.

    4. Two Notes on "Funds" in the Crime of Misappropriation of Funds

    (1) Social pension for retired employees

    According to the Reply Letter on the Applicability of Laws to Embezzlement of Retired Employees' Social Pensions by the Research Office of the Supreme People's Court (Fayan [2004] No. 102), pension insurance funds for retired employees do not belong to the categories of disaster relief, emergency rescue, flood control, and special care in my country's criminal law. , poverty alleviation, immigration, relief and other specific items. Therefore, when the act of misappropriating pension funds for retired employees constitutes a crime, criminal responsibility cannot be investigated for the crime of misappropriation of specific funds and properties, but should be investigated for the crime of misappropriation of funds or the crime of misappropriation of public funds according to the identity of the perpetrator.

    (2) Funds of companies that have not yet been incorporated

    According to the Reply of the Supreme People's Procuratorate on the Applicable Legal Issues Concerning the Misappropriation of Funds of Unregistered Companies (Gao Jian Fa Yan Zi [2000] No. 19), the staff who are preparing to establish a company take advantage of the convenience of their positions before the company is registered. , misappropriating the funds in the temporary bank account opened by the company to be established, for personal use or lending to others, if the amount is relatively large and has not been repaid for more than three months, or although it has not exceeded three months, the amount is relatively large and has not been repaid. Those who conduct profit-making activities or conduct illegal activities shall be investigated for criminal responsibility according to the crime of misappropriation of funds.

    V. Regarding the handling of the behavior of the staff of the state-funded enterprise using the funds of the restructured company or enterprise to guarantee personal loans for the purchase of shares in the restructured company or enterprise

    According to the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Cases of Official Crimes in State-funded Enterprises (Fa Fa [2010] No. 49), the staff of state-funded enterprises are responsible for the restructuring of companies and enterprises. Whoever purchases shares of a company or enterprise and uses the company's or enterprise's funds or financial certificates or securities to guarantee personal loans by taking advantage of his position shall be subject to Article 272 or Article 384 of the Criminal Law. Convicted and punished for the crime of misappropriation of funds or the crime of misappropriation of public funds. If the perpetrator holds shares in the state-funded enterprise before the restructuring, it does not affect the determination of the amount of misappropriation, but it should be considered as appropriate when sentencing. With the approval of the relevant competent department or in accordance with the relevant policies and regulations, if the staff of the state-funded enterprise commits the acts in the preceding paragraph for the purpose of purchasing the shares of the restructured company or enterprise, it may not be treated as a crime according to the specific circumstances.