The crime of duty embezzlement refers to the illegal possession of the property of a company, enterprise or other unit by taking advantage of its position, and the amount is relatively large.
(A) the object elements
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.
(b) objective factors
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:
1. You must take advantage of your position. By taking advantage of your position, you mean taking advantage of your authority and the convenience related to your 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 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 taking advantage of the position, but taking advantage of the work, such as being familiar with the environment, being easy to mix with the people on the spot, being easy to get close to the goal 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.
2. There must be encroachment. Unit property refers to all 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. It also includes the act of defrauding, stealing, embezzling and dividing up without occupying the property of the unit first, thus turning it into a private act. 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.
3. It must reach a large number. If there is only illegal possession of the property of companies, enterprises and other units, but it does not reach the standard of large amount, it cannot constitute this crime. As for the larger starting penalty, referring to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Violating Company Bribery, Corruption and Embezzlement of Public Funds, it refers to embezzling the property of companies, enterprises and other units, with the amount ranging from 5,000 yuan to 20,000 yuan.
(3) Main elements
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.
(4) Subjective factors
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.