Object element
The object of this crime is the property ownership of companies, enterprises or other units. The "company" mentioned here refers to non-state-owned limited liability companies and joint stock limited companies established in accordance with the Company Law of People's Republic of China (PRC). Enterprises refer to non-state-owned economic organizations such as shops, factories, restaurants, hotels, various service industries, transportation and other economic organizations with certain registered capital and certain employees, in addition to 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 and immovable property. The so-called "movable property" not only refers to currency (including RMB, foreign currency, securities, etc. ) property that has been occupied and managed by companies, enterprises and other units, including property that the unit has the right to occupy but does not possess, such as creditor's rights owned by companies, enterprises 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.
Objective elements
This crime is objectively manifested as taking advantage of his position to occupy the property of his unit. Specifically, it includes the following three aspects:
First, we must take advantage of our position.
The so-called use of position convenience refers to the use of authority and position-related convenience. 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 position or post, or by other personnel, although I do not directly use the authority of my position or post. Including: (1) using the authority of the supervisor, in charge, handling, deciding or handling and handling certain matters; (two) rely on and rely on their own power to command, influence subordinates or use other personnel's functions and powers related to their posts; (3) Rely on, control or dominate other personnel by virtue of authority and position, or use the authority of people with 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 funds; Ordinary employees use the rights of the unit to temporarily hand over their houses and other property to their own use and custody. As for not using the position convenience, only using the work convenience, such as being familiar with the environment, easy to integrate into the scene, easy to get close to the target and so on. Even if he obtains property, it does not constitute this crime. If it constitutes a crime, it should be punished as theft. Second, there must be encroachment.
The property of a unit refers to all the property owned by the unit according to law, including all property rights, intangible property rights and creditor's rights owned by the unit in its own name or not. Its specific forms can be buildings, equipment, inventory goods, cash, patents, trademarks and so on. The so-called illegal possession refers to the act of turning the property of the unit into private property by means of embezzlement, theft, fraud, etc., including the act of taking the property legally held by the unit for yourself, taking it for yourself, taking it for yourself, such as taking the property and equipment of the unit and selling it at a fixed price; Register the transfer of the unit house where you live as your own; Or hide the things you keep, and lie that they are stolen, lost, damaged, etc. , and including the use of his position, not to possess the property of the unit first, but to defraud, steal, embezzle and divide it up, thus turning it into a private ownership. As long as the purpose is illegal possession in essence, and the intention of illegal possession is expressed by taking advantage of one's position to reach the standard of large amount, this crime can be constituted by means of misappropriation, theft, fraud and so on, whether it is to hold it first and then take it for oneself, or not to hold it first and then take it for oneself. It is worth noting that once the actor's illegal possession of unit property begins, it will continue, but this is only the continuation of the result of illegal possession, not the continuation of the occupation of this crime. The completion of the occupation should be regarded as completed. As for the attempt, it depends on whether the crime of embezzlement is completed. If it is not completed, it shall be punished as attempted. If the accountant deliberately fails to record a certain sum of money, but it is found before the settlement, it should be regarded as an attempt of this crime.
Third, it must reach a large amount. If there is only illegal possession of property of companies, enterprises and other units, but it does not reach the standard of large amount, it does not constitute this crime.
As for the starting point of a large amount, according to Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Corruption and Bribery jointly issued by the Supreme People's Court and the Supreme People's Procuratorate on April 20 18, the starting points of "a large amount" and "a huge amount" in the crime of accepting bribes by non-state staff as stipulated in Article 163 of the Criminal Law and the crime of embezzlement by taking advantage of their posts as stipulated in Article 271 are based on this interpretation. Article 1 Whoever embezzles or accepts bribes in an amount of not less than 30,000 yuan but not more than 200,000 yuan shall be deemed as a "relatively large amount" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined. Article 2 Whoever embezzles or accepts bribes in an amount of more than 200,000 yuan but less than 3 million yuan shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined or confiscated.
According to the above regulations, the amount of less than 60,000 yuan1100,000 yuan is relatively large; More than one million yuan is a huge sum.
Theme element
The subject of this crime is a special subject, including the personnel of companies, enterprises or other units. Specifically, it refers to three natural persons with different identities. One is the directors and supervisors of joint stock limited companies and limited liability companies. These directors and supervisors shall not have the status of national staff. They are the actual leaders of the company and have certain power. Of course, they can be the subject of this crime. 2. The above-mentioned company personnel refer to the managers, department heads and other ordinary employees of the company except directors and supervisors. These managers, department heads and employees shall not have the status of national staff. They either have specific powers or engage in specific jobs, and they can take advantage of their powers or work to occupy the company's property and become the subject of this crime. 3. 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, as well as all employees of state-owned enterprises, companies, Sino-foreign joint ventures and Sino-foreign cooperative enterprises without the status of state staff. To sum up, whoever 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. Whoever does not have the status of a state functionary and takes advantage of his position to occupy the property of his unit shall be punished for this crime. The "national staff" mentioned here refers to those who exercise management authority in state-owned companies, enterprises or other companies and enterprises, including those who are appointed or employed by state-owned companies and enterprises, and who exercise management authority in non-state-owned companies and enterprises such as Sino-foreign joint ventures and cooperative ventures as representatives of state-owned companies and enterprises. People with the status of national staff cannot be the subject of this crime. subjective factor
Subjectively, this crime is direct and intentional, with the purpose of illegally possessing 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 are obtained or exercised does not affect the constitution of the crime.
legal ground
Article 271 of the Criminal Law Any employee of a company, enterprise or other unit who, by taking advantage of his position, 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 10 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 or other units shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law.