Chapter 1: Overview
Anti-fraud
In 2008, the Ministry of Finance, in conjunction with the Securities and Exchange Commission (SEC), the Audit Commission (AAC), the China Banking Regulatory Commission (CBRC), and the China Insurance Regulatory Commission (CIRC), formulated the "Basic Standard for Internal Control of Enterprises," which has come into force for listed companies since July 1, 2009, and encourages the implementation of the Standard for Non-listed Large and Medium-sized Enterprises (NLMEs).
The Basic Standard for Internal Control of Enterprises does not give a specific concept of "anti-fraud", but Article 42 specifies four key situations for anti-fraud work: (1) unauthorized or other unlawful means of misappropriation or misappropriation of enterprise assets for undue profit. (2) False records, misleading statements or material omissions in financial accounting reports and information disclosure. (3) Abuse of power by directors, supervisors, managers and other senior management. (4) Collusion by relevant organizations or personnel. Code of Internal Control for Small Enterprises issued by the Ministry of Finance in 2017
II. Legislative Interpretation
Article 271 of the Penal Code is about the crime of misappropriation of duties and its punishment.
According to the provisions of the criminal law and the general opinion of the academic community, the crime of job appropriation refers to the behavior of a staff member of a company, enterprise or other unit who, taking advantage of the convenience of his or her position, illegally appropriates for himself or herself the unit's property, in a relatively large amount.
The Criminal Law Amendment (XI) Act of 2020
Cases
On the morning of October 18, 2018, the case of Song Zhe and Xiu Yule's job encroachment was pronounced in the first trial of the Chaoyang Court in Beijing, and the defendants, Song Zhe and Xiu Yule, were sentenced to six years' and three years' fixed-term imprisonment for committing job encroachment, respectively.
The court found that: defendant Song Zhe in 2014 to 2016 in Wang Baoqiang (Shanghai) film and television culture studio during the post, using as general manager and Wang Baoqiang agent position convenience, alone or in conjunction with the defendant Xiu Yule, the use of misrepresentation of the performance, advertising and endorsement fees by means of misrepresentation of performance, advertising and endorsement of the studio performance, advertising and other business money **** counted RMB 2.325 million yuan.
The court held that the defendant Song Zhe, as a company officer, utilized the convenience of his position to misappropriated the unit's property; the defendant Xiu Yule formed a consensus with Song Zhe in the course of his crime and provided him with help, which constituted Song Zhe's **** offender. Both constitute the crime of misappropriation of duties,
I, the subject of the act
(a) special status
The subject of the act, the subject of the criminal law provisions of the implementation of criminal acts. Crimes whose constituent elements require a natural person to have a special status, as well as crimes whose aggravation and mitigation of punishment presuppose the possession of a special status, are referred to as status offenses.
According to the provisions of the sub-rule of the Criminal Law, the crime of misappropriation of duties is a crime with special status as an element of the constituent elements, and the subjects of the crime include: (1) the staff of a company, enterprise or other unit (Article 271 of the Criminal Law); and (2) the staff of an insurance company (Article 183 of the Criminal Law). The unit does not constitute the subject of this offense.
For example, if one applies for employment as a staff member of a unit under a false identity, and then uses the convenience of one's position to illegally appropriate the unit's property for one's own use, the crime of misappropriation of office is established.
Another example is to become the head of a company through a fictitious resolution of a shareholders' meeting, and then use the convenience of his position to take the company's property for himself, establishing the crime of misappropriation of office.
Another example is that a person who sells products in a company, whether he or she receives a fixed salary or a commission based on sales performance, and whether he or she is a regular employee, a contract worker or a temporary worker, can be the subject of the crime of misappropriation of functions as long as he or she has taken advantage of his or her position.
(B) the victimized unit
The unit in the criminal law, both as the subject of the crime of the criminal unit, and as the victim of the victim unit. Article 30 of the criminal law [4] of the unit of the crime of "unit" and the criminal law of Article 271 (1) of the crime of misappropriation of the concept of the unit is not consistent, the former refers to as the subject of the crime should be held criminally responsible for the "unit", the latter refers to the property is infringed on the "unit", the need for protection under criminal law. Need criminal law to protect the "unit", liability for the "unit" of the individual.
It is generally believed that since the individual businessman is not a company, enterprise or other units, so its employees can not become the subject of this crime.
The "other units" should not be narrowly construed. Reference to the "commercial bribery case opinions", "other units", including institutions, social organizations, village committees, resident committees, village groups and other permanent organizations, but also for the organization of sports events, cultural and artistic performances or other legitimate activities set up by the organizing committee, organizing committee, engineering contracting team and other non-permanent organizations. Whether other temporary organizations not listed, such as creditors' meetings and liquidation groups, are other units needs to be specifically grasped in practice.
Case (2021) cloud 26 criminal end 240
The court held that, on the appellant Li Jiazinc and his defense proposed Li Jiazinc's identity does not meet the subject of the crime of occupation of the appeal and defense. It was found that there were many witnesses in the case who confirmed that Li Jiazinc took the title of deputy general manager of Wo Ma Company when conducting business with the outside world, and had actually performed the duties of this position, and was responsible for the marijuana cultivation and promotion affairs of Wo Ma Company.
The above witness statements and Li Jiazinc's confession and the case of the payroll roster and Li Jiazinc's bank water to confirm that Li Jiazinc in the company to receive wages, sufficient to confirm the existence of Li Jiazinc and the company's labor relations, and has actually performed the company's deputy general manager in charge of the company's marijuana cultivation and promotion of the duties of the identity of its subject in line with the crime of misappropriation of the subject. The main elements.
Case (2020) Guangdong 1971 criminal 899
The trial found that since the beginning of 2017, Xie Haibo used his position to facilitate the collection of customer funds, not surrendered to the company, *** misappropriation of Dongguan Jucheng Accounting Services Partnership 481103 yuan. This court believes that the defendant Xie Haibo with the purpose of illegal possession, using the convenience of his position, the unit property illegally occupied for himself, the amount is large, his behavior has constituted the crime of occupation.
Second, the subjective aspect
This crime in the subjective aspect is directly intentional, and has the purpose of illegal occupation of the company, enterprise or other units of property.
Case (2015) chuan criminal mention word no. 2
The court held that the defendant in the original trial, yang mou as shunfeng company's staff as well as have handled shunfeng company's property of the objective fact of the job, meet the subjective requirements of the job appropriation. Secondly, shunfeng company based on express contract and lawful possession, control of the property delivered by the shipper and the loss of property liability, the property should be regarded as shunfeng company property. Finally, yang mou as shunfeng company staff, by shunfeng company arrangement, responsible for the company's courier parcel sorting work, specific handling of the property in question, the unit of property with temporary actual control, its use of the convenience of this position, the property will be unlawfully occupied for its own, its behavior is consistent with the crime of misappropriation of the criminal behavior characteristics, but due to the misappropriation of the value of the property of 1999 yuan did not reach the crime of misappropriation of the crime of occupation of the However, because the value of the property, 1999 yuan, did not reach the threshold for the crime of occupational misappropriation, the crime was not punished according to the law.
Case (2015) Second Intermediate Criminal Resistance Final Word No. 515
Between April 2009 and December 2010, the appellant (defendant in the original trial), Zhang Shougang, utilized his position as the assistant to the general manager of the Fixed Income Department of Zhongrong Trust Company as a convenience to find funds and bond clients in the inter-bank bond market, relying on the qualification and credit of Zhongrong Trust Company as well as the trading platform provided by the company to engage in the bond market, respectively. In the interbank bond market, Zhang Shougang searched for capital clients and bond clients respectively, and engaged in bond aggregation transactions. In the course of the transactions, Zhang Shougang manipulated Funglian Company, which was under his actual control, to carry out transactions related to Zhongrong Trust Company by designing the transaction process and increasing the number of transaction links, and conveyed the benefits due to Zhongrong Trust Company*** amounting to more than RMB 207 million to Funglian Company, which was then illegally appropriated by him personally. The court held that Zhang Shougang, as a company staff, took advantage of the convenience of his position and illegally appropriated the unit's property for his own use, and his behavior constituted the crime of job appropriation.
Case (2020) Shanghai 0113 criminal early 955
After the trial, it was found that:
1. Between September 2019 and April 2020, defendant He Mou, while serving as a purchasing agent of so-and-so company, in order to raise gambling funds, took advantage of the convenience of his position and, under the guise of ordering goods, induced so-and-so company to make payment to its suppliers, and then fabricated a false reason to ask the The supplier will return part of the payment to his personal bank account, through the above means to embezzle the payment of more than 1.9 million yuan.
2, March 2020, the defendant HeMou falsely claimed the need to pay for goods, induced a company legal representative LiMou2 to HeMou relations to pay the payment of goods 160,000 yuan, and then by the relations to transfer to his personal account.
On the conviction of this case, this court believes that the defendant HeMou as a company staff, the use of procurement of goods, payment of goods, the convenience of duty, the payment of more than 1.9 million yuan from the company's account out of the account after the transfer of personal account, is the use of the convenience of the duty to fraudulently take the company's money, should be recognized as the crime of misappropriation of duties. But the defendant He falsely claimed that the payment of goods, from the victim LiMou2 cheated 160,000 yuan is not duty behavior, should be identified as fraud.
Case (2008) shanghai one in the final word No. 682 [12]
The defendant Li Jiang Department of Shanghai hu shenzhen air cargo services limited company (hereinafter referred to as hu shenzhen air company) driver. 2008 January 12, 4 pm, Li Jiang in the unit of cargo to Shanghai pudong international airport, from the truck in the sealing box to steal the consignor Ren He entrusted hu shenzhen air company to transport plum blossom mouse year-end. The Company carried 30 commemorative gold coins for the Year of the Plum Blossom Rat (*** worth more than RMB 160,000 yuan).
The controversy in this case is whether the defendant Li Jiang's behavior constitutes the crime of occupying a position or the crime of theft.
Shanghai No.1 Intermediate People's Court held that the difference between the crimes of theft and misappropriation of functions lies in whether the perpetrator took advantage of the convenience of his position when he committed the crime.
The carrier of general cargo transportation not only has the duty to deliver the goods to the destination in a safe and timely manner, but at the same time has the obligation of direct custody of the goods. Freight drivers in transit, the use of their transport, custody of goods, the convenience of their duties to steal the goods, constitute the crime of misappropriation of duties.
In practice, due to the conditions of their duties handled labor tools, products, express pieces, using their convenience to steal, the priority of the application of the crime of misappropriation of duties rather than the application of theft, which is actually the misappropriation of duties is understood to include the act of stealing, that is to say, once the perpetrator took advantage of the convenience of the duties, even if there is stealing behavior in accordance with the misappropriation of duties conviction and punishment.
Case (2021) Guangdong 0307 criminal early 2634
2021 April to May period, the defendant Zhu Chuanjian to illegal possession for the purpose of using their own office in Jiangxi Province on the Upper Upper Upper Upper Upper U Jiayi Lighting Products Company Limited Longgang District Pinghu Street, South China City Office warehouseman, responsible for the management of the office of the office of the storage of all the company's copper wire of the office's position of the convenience of the conditions, take Theft and sale of means, a large number of stolen office of the copper wire, and through WeChat channels to contact WeChat named "cherish the edge", "recycling hardware and electronic parts" buyers, will be stolen out of the copper wire sold to "cherish the edge! ", "recycling hardware and electronic parts", and collect the sale of copper wire stolen money *** counted RMB 77,930 yuan, the stolen money are used by Zhu Chuanjian network chess gambling and other illegal activities.
Shenzhen Longgang District People's Court held that the defendant Zhu Chuanjian's behavior constitutes the crime of occupation.
Chapter 3: Penalties for Occupation of Duties
I. Criteria for prosecution
According to the first paragraph of Article 271 of the Penal Code, if a person commits this crime, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be punished by a fine; if the amount is enormous, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall be punished by a fine; if the amount is particularly enormous, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall be punished by a fine. life imprisonment and a fine.
Amounts between 60,000 yuan and 1 million yuan are "large amounts", and before the amendment, the statutory penalty of fixed-term imprisonment of less than five years was applied, while after the amendment, the statutory penalty of fixed-term imprisonment of less than three years was applied. According to this analysis, after the entry into force of Amendment (XI) to the Criminal Law, the perpetrator can be treated leniently according to the principle of "the old and the less severe" before the corresponding judicial interpretation is issued. At the same time, the lowering of the upper limit of the basic legal penalty to less than three years of imprisonment, which meets certain conditions, it is possible to apply for bail pending trial, suspended sentence left room.
Second, the sentencing guidelines
According to the two high "on the sentencing guidelines for common crimes (Trial)" (Fa Fa [2021] No. 21), constitutes the crime of occupation, according to the following circumstances in the corresponding range to determine the starting point of the sentencing:
(1) to reach the starting point of the amount of larger, in the range of less than a year of fixed-term imprisonment, criminal detention, to determine the starting point of the sentencing.
(2) If the starting point for a large amount is reached, the starting point for sentencing is determined within the range of three to four years of imprisonment.
(3) If the starting point of a particularly large amount is reached, the starting point of sentencing shall be determined within the range of ten to eleven years' imprisonment. Except for those who should be sentenced to life imprisonment according to law.
On the basis of the starting point for sentencing, the amount of penalty shall be increased according to the amount of misappropriation of functions and other facts of the crime that affect the composition of the crime, and the base sentence shall be determined.
Where the crime of doing job-related misappropriation is constituted, the amount of fine shall be determined on the basis of the amount of job-related misappropriation, the harmful consequences and other circumstances of the crime, as well as on the basis of the defendant's ability to pay the fine.
Constituting the crime of occupying a position, taking into account the amount of occupying a position, the means, the harmful consequences, the return of stolen goods and compensation and other criminal facts, the sentencing circumstances, as well as the defendant's subjective malignancy, personal danger, confession of guilt and repentance, and other factors, to determine the application of probation.
In practice, the transaction discount generally involves the supplier, the counterparty, the transaction intermediary, so the use of "discounts" can be summarized in the following situations:
(1) false discounts
Case (2014) Fosun Law Criminal Initial No. 1898
Determination of the decision:
This is the first time that the defendant has been sentenced to probation. >The main thrust of the decision:
The defendant privately raised his company to give the counterparty discounts, resulting in the counterparty overpayment of goods, the defendant will be controlled by the bank account number provided to the counterparty to accept the payment of the goods, and then the defendant will be the actual payment of the goods to the defendant to transfer to the company, the defendant misappropriation of the overpayment of counterparty behavior constitutes misappropriation of duties.
Basic case:
From February 2010 to January 2011, the defendant Cen Moumou privately increased the discount given to Dynasty by the supplier Fortune Home Furniture Factory (hereinafter referred to as Fortune Factory), which led to the overpayment of goods to Fortune Factory by Dynasty. Overpayment of goods reaches a certain amount, Cen Moumou through the provision of their own manipulation of "Hong Moumou" private account number to the financial dynasty for remittance of goods, and then the actual transfer of goods to Fortune Factory, and from which to extract and misappropriation of a portion of the purchase price. During the above period, cen moumou **** usurped the dynasty company paid to the rich run factory payment of RMB 56,846 yuan.
(2) Concealment of Discounts
Case (2016) Beijing 0105 Criminal 1830
The main points of the decision:
The defendant concealed the discount preferential policy of his company from the counterparty, and then, posing as the counterparty, obtained the company's return of the prepayment from the company in which he was working, and his behavior constituted misappropriation of duties.
Basic case:
In April 2014, defendant Ye x, during his position as deputy manager of the technical department of xx Logistics (Beijing) Co., Ltd. (now x1 Technology (Beijing) Co., Ltd.), took advantage of the convenience of his position, and, when negotiating with China x2 Group Beijing Co., Ltd. for the leasing of a private line for the network, concealed the fact that prepayment of a year's fee to x2 Co. would entitle him to a 35% discount. Preferential policies, in the name of xx Logistics (Beijing) Co., Ltd. and x2 company signed network leasing contract, private in the name of Beijing x3 Technology Development Co., Ltd. and x2 company signed the prepayment return agreement, and asked x2 company salesman Wu × will be the nominal value of 114,744 yuan of rechargeable card exchange into cash into their own personal bank accounts. Later, Wu × credited RMB 103,275 into Ye ×'s bank card on May 29, 2014.
(3) false counterparty
Case (2016) Guangdong 03 criminal end 1140
The main points of the decision:
The defendant will be the casual customer order pretends to be discounts or even factory price of the store orders, from which the appropriation of the company's difference in the price of the goods constitutes the behavior of the appropriation of duties.
Basic case:
XXX company is engaged in furniture production, sales company, its product sales model is divided into two kinds, one is the store sales, store by the agent of the company's products franchisee set up in different cities, taking into account the franchisee to set up stores invested in the cost of larger, XXX company in order to broaden the market, the price of its products to the stores are usually Factory price of more than 3.5% discount; another mode is the company directly sells products to end customers (i.e., retail customers), its sales price is significantly higher than the price to the store, generally more than 7% off the factory price (the lowest is 6.8% off).
The defendant Kang mou in XXX company sales manager, the competent area for the east China area, Shanghai flagship store and jiangsu wuxi moon star store are responsible for contact management by Kang mou. 2013 March to December period, the defendant Kang mou use the convenience of his position, will be introduced by the intermediary of a number of scattered customers posing as the Shanghai flagship store and jiangsu wuxi moon star store these two boutiques The name to XXX company to place orders, from which misappropriation of the company's difference in the price of goods.
(4) False intermediaries
Case (2019) Shanghai 0104 Criminal 844
The main points of the decision:
The defendants falsely set up the third-party company under their control as an agent of the defendants' company, and took advantage of the fact that the agents could apply for discounts on the purchases of goods and could obtain sales rebates to embezzle the sales money of the defendants' company, and subsequently, the Defendants use their respective positions to facilitate cash through the so-called "agent" company under their control, their behavior constitutes misappropriation of duties.
Basic case:
March 2017 to May of the same year, the defendant YuMou, KongMouMou ganged up with each other, using the convenience of their respective positions, in the Columbia Sportswear Trade (Shanghai) Co. (Yuco) as the agent of the company, using the agent to purchase goods at a low price and the company signed a sales contract directly with the customer and then returned to the agent, embezzling the company's sales money *** RMB 292,500.
(5) False Discount Usage
Case (2010) Yong Ci Criminal Initial No. 550
Judgment:
The defendant took advantage of his position to falsely claim to his company that he was authorized to receive preferential prices for products sold through the company's designated sales channels, and then the defendant actually sold them at prices higher than the preferential prices to other companies, and the difference in prices was misappropriated. The difference in price was misappropriated, constituting misappropriation.
Basic Case:
On October 25, 2007, the defendant Li Shuai, on behalf of Ningbo Fanta Kitchen Appliance Co. Water heaters and range hoods***9000 units, but the products (referred to as engineering machines) could only be used in the Gansu living base of Qinghai Petroleum Administration, and could not be sold in other channels, and the sales price, model, and delivery place of the products were agreed upon.
Defendant Li Shuai, Sun Wei, together with the defendant Tao Jianlin use as Fangtai company management personnel, in order to the headquarters of the company falsely claimed that the sales to Rongteng company in the name of engineering machines, so that the head office in accordance with the price of engineering machines will be out of the warehouse, in fact, higher than the price of the engineering machines sold to other companies, the means of the difference between the part of the payment of the goods to be misappropriated.
Second, the project manager to implement the job appropriation behavior
Building construction enterprise project manager (referred to as the project manager), refers to the legal representative of the enterprise entrusted to the construction process of the project is fully responsible for the project manager.
The project manager is the person in charge of the project management team of a construction project appointed by the construction enterprise.
Project manager is not a technical position, not a "technical title", not a professional qualification, but a management position. He is an organizational system of managers, as to whether he has human rights, financial rights, the right to purchase materials and equipment, etc., should be determined by the management of its enterprises.
Construction enterprises in China implement the project manager responsibility system in construction project management. Project manager responsibility system refers to the construction project management target responsibility system with the project manager as the main body of responsibility.
Case 01 (2021) 浙0282刑初1346号
In the second half of 2019, defendant Liu Jun joined xx construction group limited as project manager of Ningbo Zhouxiang project department.2020 during the period of 2020, defendant Liu Jun took advantage of the position convenience of project manager, appropriated the company's property in the following ways: selling the company's cigarettes used for work reception to the Cixi xx cigarettes and wine merchants, the amount of RMB 0.54 million; Cixi xx construction company to pay the road repair cost of RMB 20,000 yuan, did not hand over the financial accounts; in the name of the project hospitality, from Cixi Zhouxiang xx daily-use goods supermarkets in succession falsely issued invoices of cigarettes, reimbursement of the company's finances, the amount of money *** more than RMB 51,800 yuan; will be the company's electricity meter external to the Cixi xx The company's electric meter was connected to Cixi xx construction company and the company collected fees, and the amount was RMB 42,000 yuan, which was not submitted to the financial accounts. The above amount of money *** totaled more than RMB 119,000 yuan, were used by the defendant Liu Jun for daily consumption.
Case 02 (2021) Shanghai 0104 Criminal Beginning No. 807
In February 2017, Defendant Xu Mingming entered Shanghai A Company Limited (hereinafter referred to as Five Flowers Horse Company) and served as the project manager of Five Flowers Horse Company's Xuzhou Sanko Plaza, responsible for the project's on-site management, expense settlement, etc. Between July and September 2017, Xu Mingming, after requesting payment from Five Flowers Horse Company , he retained the labor fees that should have been paid to project subcontractors,*** amounting to more than RMB 139,000 yuan.
Case 03 (2021) Guangdong 0491 Criminal Beginning No. 14
Defendant Kang Xiang joined Shenzhen Guangning Company Limited as a project manager on June 3, 2019, and was assigned by the company to the Zhuhai Hengqin International Finance Center project, with the main scope of duties being project management and various related businesses.Between August and September 2020, defendant Kang Xiang used his The defendant Kang Xiang used his warehouse key to open the company's temporary warehouse on the top floor of the Hengqin International Finance Center, three times the company stored in the warehouse 16 sets of audio equipment moved out of the warehouse, through the logistics courier to others to mortgage the sale of audio equipment,*** totaling RMB 86,800 yuan. Kang Xiang will be used for these funds for personal debt repayment consumption and Internet gambling.
Case 04 (2021) 浙1002刑初134号
2020年3月至7月，被告人徐军在担任松原市瑞家装潢装饰有限公司台州分公司项目经理期间，利用經手项目资金、材料的职务便利，收到公司负责人李某1交付的工人人工费、材料费后向工人谎称公司未支付，. After the private project in the name of the company to the cooperation of the material supplier to receive materials, *** count illegal possession of the company's property value of RMB 374,759 yuan.
Case 05 (2019) Ji 0221 criminal early 254
On June 10, 2017, the defendant Cao Rui and Kangxiang Company, located in Room 323 of the Jilin (China-Singapore) Food Zone Headquarters Building in Qiaoluhe Town, Yongji County, Jilin Province, signed a contract of employment of the person in charge of the project, which authorizes the defendant Cao Rui to be responsible for the construction management and Kangxiang Company to be in charge of the Inner Mongolia Yakeshi Huaye International Construction Project construction management and authorized matters in the steel sales and purchase contract signed between Kangxiang Company and Hongyuan Company.The steel sales and purchase contract signed between Kangxiang Company and Hongyuan Company on July 16, 2017, in which the guarantor, Jilin Ruirong Real Estate Development Company Limited (hereinafter referred to as Ruirong Company). Kangxiang Company designated Defendant Cao Rui to be responsible for applying for the purchase of steel and signing for the receipt of steel, and Kangxiang Company settled the steel payment to Hongyuan Company in accordance with the provisions of the steel purchase and sale contract, based on the quantity and amount of steel signed and received by Defendant Cao Rui. Defendant Cao Rui, during the performance of the steel sales contract, without the consent of Kangxiang Company, took advantage of the convenience of his position without authorization, and on July 16, August 5, and August 24, 2017, respectively, privately purchased on credit in the name of Kangxiang Company steel with a total value of 401,360.58 yuan from Hongyuan Company in three instalments and used the steel purchased on credit for his repayment of the labor fee owed to Li Mou on October 20, 2016, respectively.
Third, the behavior of company personnel using the convenience of their positions to illegally occupy shareholders' equity
The Opinion of the Legal Affairs Commission of the Standing Committee of the National People's Congress on the Reply to the Approval of the Approval of the Reply on the Behavior of the Company Personnel Using the Facilitation of their Positions to Adopt Deceit and Other Means to Illegally Occupy the Shareholders' Equity Interests (Letter of the Legal Affairs Commission (2005) No. 105), the reply is as follows: According to the Criminal Law, the ninety-second According to Article 92 of the Criminal Law, shares are property. If the use of various illegal means to embezzle or possess the shares to which another person is entitled in accordance with the law constitutes a crime, the provisions of the Criminal Law relating to the crime of unlawfully infringing on another person's property shall apply.
Regarding the LSC's letter. First of all, the LSC letter is not a legislative interpretation, can only be called a legislative interpretative opinion. Secondly, article 92 of the Criminal Law provides for "privately owned property of citizens", not "property of units". Third, the application of the criminal law relating to unlawful infringement of other people's property is not clear, because the infringement of other people's property crimes such as misappropriation, theft, misappropriation, embezzlement, embezzlement of public funds (funds) and other crimes.
The only thing clarified or "reiterated" in the LAC's 105th opinion is that shares are property. This is because Article 92 of the Criminal Law stipulates that property privately owned by citizens includes shares, stocks, bonds and other property owned by individuals in accordance with the law.
The second important document, the Ministry of Public Security Bureau of Economic Investigation issued on June 24, 2005, "the Ministry of Public Security Bureau of Economic Investigation on the illegal appropriation of other people's equity whether it constitutes the crime of misappropriation of the work of the opinion", the opinion that in recent years, many local public security organs of the company's shareholders or entrusted with the use of unlawful means of misappropriation of the share capital, whether or not suspected of misappropriation of the crime of occupation of the question of the request for instructions to the Bureau. In response to this issue, the Bureau has held several symposiums and separately sought the views of the High Prosecutor, the High Court and the Criminal Law Office of the Legal Affairs Commission of the National People's Congress and other relevant departments. Recently, the supreme people's court criminal trial of the second division replied in writing to my bureau: for the company shareholders between or entrusted with the use of the convenience of the company's shareholders to illegally occupy the company's shareholders' equity, if it can be determined that the perpetrator subjectively has the purpose of illegally taking over the other person's property, then it can be the use of the convenience of the company's shareholders to illegally occupy the company's shareholders' equity in the management of the crime of occupational misappropriation.
On the Ministry of Public Security Economic Investigation Bureau opinion. First of all, whether the Supreme Court Criminal Division II reply or the Ministry of Public Security Economic Investigation Bureau opinion, are not judicial interpretation.
Secondly, the view of the Supreme Court Criminal Court can be split into three levels. The first level, must be able to determine the subjective behavior of the perpetrator has the purpose of illegal occupation of other people's property, if there is no illegal occupation of purpose, no doubt does not constitute the crime of occupation. The second level, the use of their duties to facilitate, this element is undoubtedly. The third level, illegal possession of shareholders' equity in the management of the company. Note that here is "company management", not "company-owned".
The property of the unit not only refers to the property owned by the unit, but also includes the unit's possession, management, use and transportation in accordance with the law or by agreement.
The Supreme People's Procuratorate issued a typical case in 2019, and in the case of Huang Mou and Duan Mou's job appropriation, the procuratorial authorities pointed out that, in practice, there has been a long history of determining whether a unit "owns" or "holds" "its own" property for the crime of job appropriation. The dispute over whether the property is "owned" or "held" by the unit has always existed in practice. From the point of view of infringement of legal interests, regardless of whether the appropriation of the unit "owned" or "held" property, in essence, they all violated the unit's right to property, the subjective and objective behavioral characteristics and the degree of social harm can be evaluated in a uniform manner. With reference to the provisions of the second paragraph of Article 91 of the Criminal Law on "public **** property", non-publicly owned companies, enterprises management, use, transportation of property should be the unit property theory, the crime of occupation and embezzlement to grasp the same principle of prosecution, in order to strongly deter the occupation of property, the property rights of enterprises of different ownership of equal protection, and effectively safeguard the normal production and operation of private enterprises, and to ensure the protection of the right of the unit property. Effectively safeguard the normal production and business activities of private enterprises.
For example, the courier company based on the courier contract and lawful possession, control of the property delivered by the shipper and the loss of property liability, the misappropriation of property by the perpetrator should be considered as the courier company property.
Another example, freight drivers in transit, the use of its transportation, custody of goods, the convenience of their duties to steal the goods, constitute the crime of misappropriation.
Again, the shoe company based on entrusted processing contract relationship, the raw materials involved in the management, processing, purchasing manager to use the convenience of his position will be managed by the raw materials illegally for their own, his behavior constitutes the crime of occupation.
Judicial precedents on the illegal occupation of the company's shareholders' equity constituting the crime of job appropriation:
Case 01: (2018)Beijing 0114 criminal early 171
This court believes that the defendant Chen Conghong, as the company's legal representative, general manager, and major shareholder, for the purpose of illegal occupation, using the convenience of his position, illegally occupying the equity of the shareholders of the company's management, the amount of which is relatively large. The amount is large, his behavior has constituted the crime of occupation of duties, shall be punished according to law.
Case 02: (2017) new 22 criminal final 53
The court held that the appellant Shi Cunliang, without the consent of the shareholder Chen Mou1, instructed others to forge the signature of "Chen Mou1", and changed the shares of Hami Jiu Tian He real estate development limited liability company, 50% belonging to Chen Mou1, the capital contribution of 15 million yuan, to his own shares, which belonged to Chen Mou1, the capital contribution of 15 million yuan. 15 million yuan of shares, change to their own name; will be managed by hami friendship trade limited liability company, 50% belongs to ChenMou1, capital contribution of 1.5 million yuan of shares, change to the time under the name of a certain 1; the use of the convenience of the use of the project using the method of misrepresentation of 5.5 million yuan of hami jiutianhe real estate development limited liability company, **** counting the appropriation of capital contribution of 16.5 million yuan equity and 5.5 million yuan Property, the amount is huge, his behavior has constituted the crime of occupation, shall be investigated for criminal responsibility.
Case 03: (2015) wen cang criminal initial No. 4
The court believes that the defendant Gong Youmen disregard of the state law, with the purpose of illegal possession, using as a shareholder and legal representative of the company's position on the convenience, instructed the defendant Gong Moujia forged relevant materials, unauthorized Jiang Moujia in the company's shares changed to his daughter Gong Mouyi name, the shares when the value of the amount is huge, the Their behavior has constituted the crime of occupation.
Case 04: (2014) shanzhongfa criminal second final word no. 45
This court believes that the appellant Chen Xusheng as the general manager of the company, the use of the convenience of his position, will be valued at 800,000 yuan of the company's property illegally for their own use, the amount is huge, his behavior has a serious social harm, constitutes the crime of occupation, according to the law should be investigated for his criminal responsibility.
The above cases, from 2014 to 2019, all followed the reply of the Second Criminal Court of the Supreme Court to make a guilty verdict of "constituting the crime of occupying a position".
There is also a not guilty verdict: (2018) Ning 02 criminal final No. 54, the case of Ai Moumou's crime of occupying a position. The court of first and second instance in this case found that Ai was not guilty, and that Ai's behavior did not constitute the crime of occupying a position. The court of second instance also cited the "Ministry of Public Security Economic Investigation Bureau on the illegal occupation of other people's equity constitutes the crime of occupation of work". This is a case well worth exploring.
On this basis, it was argued that the appropriation of equity does not constitute the crime of job appropriation. In fact, the (2018) Ning 02 criminal final 54 ruling did not suggest that the misappropriation of equity does not constitute the crime of job misappropriation.
The court of second instance held that although the existing evidence in the case could confirm that Ai Moumou had committed the act of illegally appropriating the equity of the company's shareholders using the convenience of his position, it could not confirm that Ai Moumou subjectively had the purpose of illegally appropriating other people's property, nor could it confirm that Ai Moumou had acted in illegally appropriating Zhenning Company's belongings for himself; therefore, the original judgment found the facts to be clear, and the application of the law to be without impropriety.
This shows that the court of second instance held that ai moumou not guilty of the reason, is unable to prove that ai moumou subjectively has the purpose of illegal possession of other people's property. The court of first and second instance court did not negate the supreme court criminal second division reply contains the referee's point of view. It can also be said that the judicial practice, the court on the illegal occupation of other people's equity constitutes the crime of occupation of office is basically unified.