(I) Object Elements

The object of this crime is the property ownership of a company, enterprise or other unit. "Company" as mentioned here refers to non-state-owned limited liability companies and joint stock limited companies established in accordance with the Company Law of the People's Republic of China; The term "enterprise" refers to non-state-owned economic organizations with a certain amount of registered capital and a certain number of employees, such as shops, factories, restaurants, hotels, various service industries, transportation industries and other economic organizations, except the above-mentioned companies; Other units refer to non-state-owned social organizations or economic organizations other than the above-mentioned companies and enterprises, including collective or private institutions and various groups.

the object of the crime of duty embezzlement is the property of companies, enterprises or other units, including movable property and immovable property. The so-called "movable property" not only refers to the money (including RMB, foreign currency, securities, etc.) that has been occupied and managed by companies, enterprises and other units, but also includes the property that the unit has the right to occupy but does not possess, such as the creditor's rights owned by the company, enterprise or other units. As far as the form of property is concerned, the object of crime includes tangible and intangible things, such as factory buildings, electricity, gas, natural gas, industrial property rights, and so on.

(II) Objective elements

Objectively, this crime is manifested as taking advantage of one's position to occupy the property of one's unit. Specifically, a large amount of behavior includes the following three aspects:

1. It must be taking advantage of one's position. The so-called taking advantage of one's position refers to taking advantage of one's authority and the convenience related to his position. Authority refers to the power within the scope of my position and post, and the convenience related to my position refers to the convenience formed by taking advantage of my authority or position, or taking advantage of my position or position through other personnel, although I do not directly use the authority of my position or post. Including:

(1) using one's own power to be in charge, in charge, handle, decide or handle, and handle certain matters;

(2) relying on one's own power to command, influence subordinates or use other people's authority related to positions;

(3) Relying on, controlling and controlling other personnel by virtue of authority and position, or using the authority of people who have their own needs, such as the power of unit leaders to allocate and dispose of unit property; The cashier's right to handle and manage money; General employees use the right of the unit to temporarily hand over their property, such as houses, to their own use and custody. As for not taking advantage of his position, but only taking advantage of his work, such as being familiar with the environment, easy to mix people with the scene, easy to get close to the target, etc., even if he obtains property, it does not constitute this crime, and if it constitutes a crime, he should be punished as theft.

2. There must be encroachment. The property of the unit refers to all the property possessed by the unit according to law, including all the property rights, intangible property rights and creditor's rights owned by the unit in its own name or not. Its specific form can be buildings, equipment, inventory goods, cash, patents, trademarks and so on. The so-called illegal possession refers to the use of embezzlement, theft, fraud and other means to turn the property of one's own unit into private property, including the act of treating, using and collecting the legally held property of one's own unit as one's own, such as falsely claiming the property of one's own unit, equipment and so on, and selling it at a price; Register the transfer of the unit house where you live as your own; Or conceal the things kept, falsely claim that they have been stolen, lost, damaged, etc., and include the act of defrauding, stealing, embezzling, and dividing them up by taking advantage of the position without taking possession of the property of the unit first, thus turning them into private ones. This crime can be constituted as long as it is essentially for the purpose of illegal possession and takes advantage of the position to express the intention of such illegal possession and reaches the standard of a large amount, whether it is to hold it first and turn it into one's own or not to hold it first and turn it into one's own by embezzlement, theft and fraud. It is worth noting that once the actor's illegal occupation of the property of the unit begins, it will continue, but this is only the continuation of the result of illegal ownership, not the continuation of the occupation of this crime. The completion of the occupation should be regarded as accomplished. As for the attempt, it should depend on whether the embezzlement is completed. If it is not completed, it should be punished as an attempt. If the accountant deliberately fails to record a certain payment, but is found before closing the account, it should be punished as an attempt of this crime.

3. It must reach a large amount

If there is only the act of illegally occupying the property of companies, enterprises and other units, but it does not reach the standard of a large amount, it will not constitute this crime. As for the larger starting amount, referring to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Violation of Company Bribery, Embezzlement and Embezzlement, it refers to the embezzlement of property of companies, enterprises and other units ranging from 5,111 yuan to 21,111 yuan.

(III) Elements of Subject

The subject of this crime is a special subject, including personnel of companies, enterprises or other units. Specifically, it refers to three kinds of natural persons with different identities. One is the directors and supervisors of a joint stock limited company and a limited liability company. These directors and supervisors must not have the status of national staff. They are the actual leaders of the company and have certain powers. Of course, they can become the subject of this crime. Second, the personnel of the above-mentioned companies refer to managers, department heads and other general staff and workers except directors and supervisors of the company. These managers, department heads and employees must not have the status of national staff. They either have specific powers or are engaged in certain jobs, and they can take advantage of their powers or work to seize the company's property and become the subject of this crime. Third, the personnel of enterprises or other units other than the above-mentioned companies refer to employees of collective enterprises, private enterprises and wholly foreign-owned enterprises, and all employees of state-owned enterprises, companies, Sino-foreign joint ventures and Sino-foreign cooperative enterprises who do not have the status of national staff. To sum up, anyone who has the status of a state functionary and takes advantage of his position or work to seize the property of his unit shall be punished in accordance with the provisions of Articles 382 and 383 of this Law on the crime of corruption. Those who do not have the status of a state functionary and take advantage of his position to seize the property of his unit shall be punished as this crime. The "national staff" mentioned here refers to those who exercise management authority in state-owned companies, enterprises or other companies and enterprises, and have the status of national staff, including those who are appointed or hired by state-owned companies and enterprises, and who, as representatives of state-owned companies and enterprises, exercise management authority in Sino-foreign joint ventures, cooperative ventures, joint-stock companies, enterprises and other non-state-owned companies and enterprises and have the status of national staff. A person with the status of a state functionary cannot be the subject of this crime.

(4) Subjective elements

Subjectively, this crime is direct and intentional, and has the purpose of illegally occupying the property of companies, enterprises or other units. That is, the actor attempts to obtain the right to possess, benefit and dispose of the property of his unit economically. Whether these rights have been obtained or exercised does not affect the constitution of the crime.

Legal Basis

Article 271 of the Criminal Law of the People's Republic of China, any employee of a company, enterprise or other unit who takes advantage of his position and illegally takes the property of his unit for himself, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge, he shall be sentenced to fixed-term imprisonment of not less than 11 years or life imprisonment and fined. Personnel engaged in public service in state-owned companies, enterprises or other state-owned units and personnel appointed by state-owned companies, enterprises or other state-owned units to engage in public service in non-state-owned companies, enterprises and other units who commit the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law.