1. Legal Provisions
Penal CodeArticle 272[Crime of misappropriation of funds] Where a staff member of a company, enterprise, or other unit takes advantage of his position to misappropriate the unit's funds for personal use or to lend them to others, and 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 for-profit activities are carried out, or illegal activities are carried out, a sentence of up to three years imprisonment or short-term detention is to be given;where the amount of funds embezzled from the unit is huge, a sentence of between three and seven years imprisonment is to be given;where the amount involved is especially huge, the sentence is to be seven or more years imprisonment.
Where personnel engaged in public affairs in state-owned companies, enterprises, or other state-owned units, or personnel appointed by state-owned companies, enterprises, or other state-owned units to engage in public affairs in non-state-owned companies, enterprises, or other units, commit the conduct described in the preceding paragraph, they are to be convicted and punished in accordance with the provisions of article 384 of this Law.
Where there is conduct in the first paragraph, and the misappropriated funds are returned before a public prosecution is initiated, the punishment may be mitigated or commuted. Of these, where the crime is relatively minor, punishment may be commuted or waived.
2. Constitutive elements of the crime of misappropriation of funds
(1) Subject matter requirements
The object of this crime is the right to use the funds of a company, enterprise or other unit, and the object is the funds of the unit. The so-called funds of the unit refer to all the property in the form of money that is owned or actually controlled and used by the unit.
(2) Objective elements
Objectively, this crime is manifested as the perpetrator taking advantage of his position to embezzle the unit's funds for personal use or lending them to others, and 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 the amount is relatively large, or the conduct of illegal activities, specifically, it includes the following two types of conduct:
1. Misappropriating the unit's funds for personal use or lending to others, and the amount is relatively large and has not been repaid for more than three months. This is a lesser form of misappropriation. Its constitutive characteristics are that the perpetrator misappropriated the unit's funds by taking advantage of the convenience of being in charge of his position and handling the unit's funds, and the purpose was mainly for personal use or lending to others, but it was not used to engage in improper economic activities, and the amount of misappropriation was relatively large, and the time period exceeded three months and was not repaid. According to the provisions of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (2)", misappropriation of the unit's funds of 50,000 yuan or more is a "relatively large amount".
2. Misappropriating the unit's funds for personal use or lending to others, although the amount is relatively large, for profit-making activities, or for illegal activities. There is no restriction on whether the misappropriation period exceeds three months and whether it is refunded after three months, as long as the amount is large and the profit-making or illegal activity is carried out, it is an offence. The so-called "profit-making activities" mainly refer to activities such as doing business, investing, buying** or bonds. The so-called "illegal activities". It refers to the use of misappropriated funds for smuggling, gambling and other activities. According to the provisions of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)", the "relatively large amount" here generally refers to the misappropriation of more than 50,000 yuan of the unit's funds, and the amount of illegal activities is more than 30,000 yuan.
The perpetrator only needs to have one of the three acts mentioned above to constitute this crime, and it is not necessary to have both;
The so-called use of the convenience of one's position refers to the misappropriation of funds by the company, enterprise or other unit that has the responsibility of buriing, operating or handling property, factory directors, accounting personnel, purchasing and selling personnel, etc., taking advantage of the convenient conditions they have for managing, allocating, using, and handling the funds of their own units to divert funds for other purposes.
(3) Subject elements
The subject of this crime is a special subject, that is, the staff of a company, enterprise, or other unit. Specifically, there are three natural persons with different identities, one is the director and supervisor of the joint-stock *** limited liability company. Second, the staff of the above-mentioned companies refer to managers, department heads and other general employees other than the directors and supervisors of the company. The above-mentioned directors, supervisors and employees must not have the status of state employees. The third is the employees of enterprises or other units other than the above-mentioned enterprises, including the employees of collective enterprises, private enterprises, and wholly foreign-owned enterprises, and all other employees of state-owned companies, state-owned enterprises, Sino-foreign joint ventures, Sino-foreign cooperative joint-stock companies, and enterprises who do not have the status of state functionaries, as well as non-state functionaries who are entrusted by state organs, state-owned companies, enterprises, public 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 misappropriation.
(4) Subjective elements
This crime can only be intentional in the subjective aspect, that is, the perpetrator clearly knows that he has misappropriated or borrowed the funds of his own unit and has taken advantage of his position, but still intentionally commits it.
3. Monetary standards
Notice of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (2) (2022).
Article 77: Cases of misappropriation of funds (Criminal Law article 272, paragraph 1) Where employees of companies, enterprises, or other units take advantage of their positions to misappropriate their unit's funds for personal use or to lend them to others, and are suspected of any of the following circumstances, a case shall be filed for prosecution:
1) The amount of misappropriation of the unit's funds is 50,000 yuan or more, and it has not been repaid for more than three months;
2) Misappropriating the amount of the unit's funds of 50,000 yuan or more to carry out profit-making activities;
3) Misappropriating the unit's funds in the amount of 30,000 yuan or more to carry out illegal activities.
In any of the following circumstances, it is "for personal use" as provided for in this article:
1) Providing the unit's funds for the use of themselves, their relatives, friends, or other natural persons;
2) Transferring the unit's funds to other units in the name of an individual;
3) Individuals decide to use their unit's funds for use by other units in the name of the unit to seek personal interests.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of BriberyLegal Interpretation 2016 No. 9
Article 11 (2).: The starting point for the amount of "relatively large amount", "huge amount", and "carrying out illegal activities" in the crime of misappropriation of funds as provided for in Criminal Law article 272 is to be implemented in accordance with twice the amount standards for "relatively large amounts", "serious circumstances", and "carrying out illegal activities" for the crime of misappropriation.
Article 5Where misappropriation is for personal use and illegal activities are carried out, and the amount is 30,000 yuan or more, criminal responsibility shall be pursued for the crime of misappropriation in accordance with the provisions of article 384 of the Criminal Law;Where the amount is 3,000,000 RMB or more, it shall be found to be a "huge amount" as provided for in the first paragraph of Criminal Law article 384. In any of the following circumstances, it shall be found to be 'serious circumstances' as provided for in the first paragraph of Criminal Law article 384:
1) Misappropriation of ** in an amount of 1 million yuan or more;
2) Misappropriation of specific funds and materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief, where the amount is between 500,000 and 1,000,000 RMB;
3) Misappropriation ** is not returned, and the amount is between 500,000 and 1,000,000 RMB;
4) Other serious circumstances.
Article 6Where misappropriation is for personal use, for-profit activities are carried out, or the amount is not returned for more than three months, and the amount is 50,000 yuan or more, it shall be found to be a "relatively large amount" as provided for in the first paragraph of Criminal Law article 384;Where the amount is 5,000,000 RMB or more, it shall be found to be a "huge amount" as provided for in the first paragraph of Criminal Law article 384. In any of the following circumstances, it shall be found to be 'serious circumstances' as provided for in the first paragraph of Criminal Law article 384:
1) Misappropriation of ** in the amount of 2 million yuan or more;
2) Misappropriation of specific funds and materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief, where the amount is between 1,000,000,000 and 2,000,000 RMB;
3) Misappropriation ** is not returned, and the amount is between 1 million and 2 million yuan;
4) Other serious circumstances.
Combined with the standard for filing a case for prosecution, the larger amount in the crime of misappropriation of funds is more than 50,000 yuan;The standard of a huge amount is more than 2 million yuan for illegal activities and more than 4 million yuan for profit-making activitiesThere is no standard for particularly large amounts.
IV. The difference between the crime of misappropriation of funds and the crime of embezzlement in public office and the crime of misappropriation of specific funds and property
1.The difference with the crime of embezzlement.
The crime of misappropriation of funds and the crime of embezzlement are both common crimes committed by executives of private enterprises, and the legal interests infringed are also the property interests of the company, which have certain similarities. The difference between the two crimes is "whether it has the purpose of illegal possession", and if the transferred unit funds are intended to be taken for oneself and not returned, it is suspected of the crime of embezzlement in public office;If it is only "misappropriation" and there is an intention to return it after a certain period of time, it is suspected of the crime of misappropriation of funds. In judicial practice, judgments should be made based on the perpetrator's purpose of misappropriation, mode of conduct, and so forth.
2.Difference from the crime of misappropriation of specific money.
The crime of misappropriation of funds and the crime of misappropriation of specific funds and property are both unauthorized misappropriation of property, and the difference between the two lies in the nature of the misappropriated property and the system violated. The crime of misappropriation of funds is the misappropriation of the unit's funds, not limited to specific purposes, and violates the internal rules and regulations of the unit;The crime of misappropriation of specific funds and property embezzled property is specific funds and materials used for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, and relief, and violates the national financial and economic management system.
5. Legal advice on the crime of misappropriation of funds
Actions that can be taken if the crime of misappropriation of funds is discovered
When criminal acts of misappropriation of funds are discovered, they may be submitted to the public security organs in writing or orally by means of reports, reports, and accusations.
1) [Reporting] refers to the conduct of natural persons (including victims) or units discovering the occurrence of criminal facts or the conduct of criminal suspects, and exposing and reporting them to the public security organs, people's procuratorates, people's courts, and other specialized state organs.
Characteristics of reporting. 1.The fact that a crime has been committed has occurred;2.There are no clear restrictions on the subject of the submission, and any natural person or unit may initiate the case, including the victim. If it is initiated by a person who committed a criminal act, it must be that the perpetrator has not been listed as a criminal suspect or defendant at the time of reporting the case to the specialized organs, otherwise it may be a case of voluntary surrender or confession. 3.It must be disclosed or reported to a specialized agency.
2) [Reporting] refers to the conduct of persons other than the parties to report or expose the facts of a criminal suspect's crime or clues on the criminal suspect to the public security organs, people's procuratorates, people's courts, or other specialized state organs.
Characteristics of the report:1The whistleblower is a person other than the person concerned who is not directly related to the facts of the reported crime;2.The informant generally knows some or all of the facts of the crime, and also knows some or all of the criminal suspects;3.Whistleblowers generally do not want the person being reported to know about themselves.
3) [Accusation] refers to the conduct of victims, their close relatives, or their litigants, who report to the judicial organs about the criminal conduct that infringes on the victim's lawful rights and interests, and request that the infringer's legal responsibility be pursued.
Characteristics of the accusation:1The subject of the accusation is generally the victim. Of course, according to the specific circumstances of the case, the legal person and close relatives (husband, wife, father, mother, son, daughter, siblings) may also tell on their behalf. According to the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" (hereinafter referred to as the "Interpretation of the Criminal Procedure Law"), if the victim is dead, incapacitated, or unable to make a complaint due to coercion or intimidation, or if a person with limited capacity for conduct or is unable to make a complaint in person due to old age, illness, blindness, deafness, muteness, etc., and his legally-designated person or close relatives make a complaint or make a complaint on his behalf, the people's court shall accept it in accordance with law. 2.The subject of the accusation shall be aware of the facts of the crime and the corresponding criminal suspect, otherwise it cannot be counted as an accusation. 3.The subject of the accusation requests that the specialized state organs handle the criminal suspect and the facts of his crime in accordance with law.
4) [Differences] Reporting, reporting, and accusation may all lead to the filing of a criminal case, and after the case is filed, the role of these three in the case is different. After the informant or informant has made a report or report, if the public security organ files a case, they will find the informant, and the informant understands the situation, and their role in the case is equivalent to that of witnesses, and they will state to the public security organs with what they know, and the evidence formed is called witness testimony, in addition, if it is really necessary, the people's court may also require the witness to appear in court to testify, but the situation of appearing in court to testify is very rare, mainly to protect the witness from retaliation, and the witness in the case has no right to retain a lawyer. Because the accuser is the victim and his close relatives, the public security organs will also ask them to understand the situation, and what they say is called the victim's statement, and they can retain a lawyer, and they also enjoy a series of rights, such as applying for criminal detention by the public security, applying to the procuratorate for arrest, participating in criminal settlement, initiating a civil lawsuit attached to a criminal case, appearing in court to charge a criminal suspect or defendant, and so on.
What to do before being arrested
1) [Actively Return Stolen Goods] The perpetrator shall return the property obtained to the injured party, and where the property has been lost and cannot be returned or the original property is damaged, compensation shall be made in accordance with the price, so as not to cause greater disputes.
2) [Actively Cooperate]If the victim has already taken measures to report the case, it is recommended that the perpetrator actively cooperate with the public security organs in conducting the investigation of the case, truthfully answering questions related to the case, and may refuse to answer questions that are not related to the case.
3) [Confession of the case] When explaining the facts of the case, the perpetrator may explain what positive measures were taken to recover the victim's losses after the case occurred.
4) [Procedural rights] If there is an act of infringement of citizens' procedural rights or personal insults, they have the right to file a complaint.
What can you do after being arrested by the public security organs
1) [Reaching an Understanding] Where losses are caused to the victims, actively negotiate with the victims' side to reach a "Civil Compensation Settlement Agreement" to obtain the victims' forgiveness and make up for the victims' losses as much as possible.
2) [Procedural Lawfulness] If the compulsory measures (e.g., detention, arrest, etc.) are taken beyond the statutory period (the maximum period of detention shall not exceed 37 days, and the period of detention after arrest shall not exceed 2 months), the compulsory measures may be lifted.
3) [Criminal Interview] If the interview is during the investigation stage, then only the lawyer can conduct the interview, so the lawyer can be entrusted to intervene during the investigation stage to understand the facts of the case and clarify the laws and regulations violated, so as to avoid worse consequences due to ignorance of the procedures and laws and regulations.
4) [Release on Bail Pending Investigation] If you have a serious illness, are unable to take care of yourself, or are pregnant or breastfeeding your child, then you meet the requirements for release on guarantee pending further investigation and may apply for release on guarantee pending further investigation.
What can be done at the trial stage
1) [Rescission] If it is found that the judges, clerks, and jurors involved in the trial have a relationship with the case, then an application may be made for them to recuse themselves.
2) [Procedural Rights and Personality Rights] Judicial personnel may file a complaint with the court against their lawful procedural rights (such as the right to free debate) and personal insults.
3) [Right to cross-examine evidence] In the course of participating in court proceedings, they may learn about the facts and evidence of the alleged crime.
4) [Debate Session]They may submit their own opinions on the testimony of witnesses who have not appeared in court, the content of the appraisal conclusions, and inquest records.
5) [Exercise of the right to self-defense] The right to participate in court debates and make final statements.
6) [Abide by the Trial Rules] In the process of participating in the trial, it is necessary to abide by the court rules and cooperate with the litigation activities conducted by judicial personnel in accordance with the law.