According to China's criminal law and related judicial interpretations, the crime of misappropriating funds refers to the behavior of employees of companies, enterprises or other units who, by taking advantage of their positions, misappropriate the funds of their own units for personal use or lend them to others for use, and the amount is large, which has not been paid back for more than three months, or although it is not more than three months, the amount is large, with profit-making or illegal purposes.
Specifically, it includes the following two behaviors:
(a) misappropriating the funds of the unit for personal use or lending them to others, and the amount is relatively large and has not been paid back for more than three months. This is a slight misappropriation. Its constituent feature is that the actor takes advantage of the position of supervisor and the convenience of handling the funds of his own unit to misappropriate the funds of his own unit. The purpose is mainly for personal use or lending to others, but it has not been used for improper economic activities, and the amount of misappropriation is large and has not been returned for more than three months. According to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery, Corruption and Embezzlement of Public Funds in Violation of the Company Law, those who misappropriate unit funds of more than 10,000 yuan but less than 30,000 yuan are regarded as "a large amount".
(2) misappropriating the unit's funds for personal use or lending them to others, although it has not exceeded three months, but the amount is relatively large, and profit-making activities are carried out. There is no limit to whether the misappropriation time exceeds three months and whether it will be returned after three months, as long as the amount is large and profit-making activities are carried out. The so-called "profit-making activities" mainly refer to activities such as doing business, investing, buying stocks or bonds. The "large amount" here refers to the misappropriation of unit funds of more than 5,000 yuan and less than 20,000 yuan according to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery, Corruption and Misappropriation of Public Funds in Violation of the Company Law.
(3) misappropriating the funds of the unit for illegal activities. This kind of behavior has no restrictions on whether the misappropriation time exceeds three months, whether it will be returned after three months, and whether the amount is large. As long as the funds of the unit are misappropriated for illegal activities, it constitutes this crime. The so-called "illegal activities". Refers to smuggling, gambling and other activities using misappropriated funds.
Crime of misappropriating funds
As long as the actor has one of the above three behaviors, it can constitute this crime, but it is not necessary to have both. The above misappropriation of funds must be taking advantage of his position. Taking advantage of one's position means that managers, factory directors, accountants and traders of companies, enterprises or other units who are responsible for managing, operating or handling property use their convenient conditions for managing, allocating, using and handling the funds of their own units to divert the funds for other purposes.
Criminal law provisions:
Article 185 Paragraph 1 Any employee of a bank or other financial institution who misappropriates the funds of his own unit or client by taking advantage of his position shall be convicted and punished in accordance with the provisions of Article 272 of this Law.
Article 272 Any employee of a company, enterprise or other unit who, by taking advantage of his position, misappropriates the funds of his unit for personal use or lends them to others, and the amount is relatively large, which has not been paid back for more than three months, or, although it has not been more than three months, the amount is relatively large, and he is engaged in profit-making activities or illegal activities, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever misappropriates the funds of his own unit in a huge amount, or fails to return the funds in a large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
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 Article 384 of this Law.