The crime of official embezzlement (Article 270 of the "Criminal Law") means that personnel of a company, enterprise or other unit take advantage of their position to illegally take possession of the unit's property for themselves, and the amount is relatively large. Big act.
Article 271: Personnel of a company, enterprise or other unit who take advantage of their position to illegally appropriate the property of their unit as their own, if the amount is relatively large, shall be sentenced to a fixed term of not more than five years. Imprisonment or criminal detention; if the amount is huge, the offender shall be sentenced to fixed-term imprisonment of not less than five years, and may also be subject to confiscation of property.
If a person engaged in official duties in a state-owned company, enterprise or other state-owned unit, or a person assigned by a state-owned company, enterprise or other state-owned unit to perform official duties in a non-state-owned company, enterprise or other unit, commits the acts in the preceding paragraph, he or she shall be punished in accordance with the preceding paragraph. Conviction and punishment are provided for in Articles 382 and 383 of this Law.
Article 183 Paragraph 1: If a staff member of an insurance company takes advantage of his or her position to deliberately fabricate insurance accidents that have never occurred to make false claims, and fraudulently obtain insurance money for personal use, this law shall apply. Convicted and punished in accordance with Article 271.
Article 114, Paragraph 1, of the "Company Law" stipulates that if directors, supervisors, or managers take advantage of their authority to accept bribes or other illegal income or misappropriate company property, the illegal income shall be confiscated and ordered to return the company property. , will be punished by the company. If a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 68 of the "Partnership Law" If a partner appropriates the interests that should belong to the partnership for himself, or uses other means to misappropriate the property of the partnership, he shall be ordered to return the interests and property to the partnership. ; If it causes losses to the partnership or other partners, it shall be liable for compensation in accordance with the law; if it constitutes a crime, it shall be investigated for criminal liability in accordance with the law.
1. The Supreme People’s Court’s Interpretation on Several Issues concerning the Application of Law in Handling Criminal Cases of Bribery, Corruption, and Misappropriation of Public Funds in Violation of the Company Law (Fa Shifa [1995.12.25] No. 23).
2. According to the provisions of Article 10 of the "Decision", directors, supervisors, and employees of the company or other enterprises take advantage of their positions or work conveniences to misappropriate the property of the company or the enterprise in an amount of If the amount is larger, it constitutes the crime of embezzlement.
3. The "crime of misappropriation" stipulated in Article 10 of the "Decision" refers to the act of illegally occupying the property of a company or enterprise through corruption, theft, fraud or other means.
Those who carry out the acts stipulated in Article 10 of the "Decision" and misappropriate the property of a company or enterprise ranging from 5,000 yuan to 20,000 yuan are classified as "large amounts"; those who misappropriate the property of a company or enterprise exceeding 100,000 yuan , belongs to "huge amount".
4. According to the provisions of Article 12 of the "Decision", if state functionaries carry out the acts stipulated in Articles 9, 10 and 11 of the "Decision", which constitutes a crime, they shall be punished in accordance with the "NPC" Supplementary Provisions of the Standing Committee on Punishing the Crime of Corruption and Bribery".
The term "state functionaries" as mentioned in Article 12 of the "Decision" refers to persons who exercise management functions in state-owned companies, enterprises or other companies and enterprises and have the status of state functionaries, including those employed by state-owned companies, Persons appointed or employed by enterprises to exercise management functions as representatives of state-owned companies and enterprises in Sino-foreign joint ventures, cooperative enterprises and joint-stock companies/enterprises, and have the status of state staff.
5. The employees of enterprises other than limited liability companies and joint-stock companies mentioned in Article 14 of the "Decision" refer to employees of non-state employees in enterprises other than limited liability companies and joint-stock companies.
6. Each higher people's court may, based on local actual conditions and the amount range of the crime of bribery, corruption, and misappropriation of public funds stipulated in this interpretation, determine the local specific amount implementation standard, and report it to the Supreme People's Court for record .
The Supreme People's Court's reply on how to define the illegal possession of public property by village group leaders who take advantage of their positions (Fa Shi [1999. 6. 25] No. 1999) has been received.
Sichuan Provincial Higher People's Court:
Your court has received the "Request for Instructions on How to Characterize Villager Group Leaders for Taking Advantage of Their Positions to Embezzle Public Property." After research, the reply is as follows:
If the leader of a village group takes advantage of his position to illegally occupy the collective property of a village group, and the amount is relatively large, he shall be punished in accordance with the provisions of paragraph 1 of Article 271 of the Criminal Law. Convicted and punished for job embezzlement.
Explanation of the Supreme People's Court on Several Issues Regarding How to Determine the Crime of * * * in the Trial of Corruption and Embezzlement Cases (Fa Interpretation [2000] No. 15, June 30, 2000)
For When cases of corruption or official-related crimes are tried in accordance with the law, the explanation on how to identify * * * as a crime in such cases is as follows:
Article 2: The perpetrator colludes with personnel of a company, enterprise or other unit, and takes advantage of the company To take advantage of the official position of an employee of an enterprise or other unit, he or she illegally takes possession of the property of the unit as his own, and if the amount is relatively large, he shall be punished as a crime of official embezzlement.
Article 3 In companies, enterprises or other units, persons who do not have the status of state functionaries collude with state functionaries and take advantage of their positions to illegally take possession of the property of the unit as their own , the principal offender shall be convicted and punished according to the nature of his crime.
The crime of providing false accounting reports
1. Concept
The crime of providing false financial reports (Article 161 of the Criminal Law) refers to the company providing false financial reports to shareholders and the public. Financial reporting or concealing important facts, seriously harming the interests of shareholders or others.
2. The composition of the crime
(1) Object elements
The object of this crime is a complex object, that is, the company’s financial accounting management system and shareholders and others legitimate rights and interests. The company aims to make profits, and a sound financial accounting system is a basic element for the company's normal operation.
The object of this crime is financial accounting reports.
(B) Objective factors
Objectively, this crime must involve the company providing false financial accounting reports to shareholders and the public or concealing important facts, seriously damaging the interests of shareholders or others.
(3) Main elements
The subject of this crime is the company and its directly responsible personnel. Including joint stock companies, limited liability companies and their subsidiaries registered in China as stipulated in the Company Law. The organizational form of Sino-foreign joint ventures registered in my country is a limited liability company according to law, and should be one of the criminal subjects of this crime; in addition, foreign-funded enterprises or Chinese-foreign joint ventures registered in China that have Chinese legal person status and are organized in the form of a limited liability company Cooperative enterprises can also be established as the subject of this crime.
(4) Subjective factors
The subjective aspect of this crime is intentionality, that is, the perpetrator provides false financial accounting reports knowing that it will harm the interests of shareholders or others.
Third, identify
(1) The boundary between this crime and non-crime
The crime of providing false financial reports and the act of making financial reports untrue due to work negligence They have the same objective aspect, that is, the financial accounting report is false or omitted, but the key to the difference between the two lies in the subjective aspect. This crime is subjectively manifested in that the perpetrator intentionally provides false financial accounting reports or conceals important facts, while subjectively it is manifested that the latter is due to the perpetrator's business ability, work experience and attitude. The financial accounting report prepared by it contains calculation errors, errors and omissions, that is, the financial accounting report is inaccurate due to negligence. Generally speaking, this kind of inaccuracy is individual in financial accounting reports and can be easily discovered during an audit. The perpetrator did not provide it intentionally and does not constitute this crime.
Fourth. Punishment
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined not less than 20,000 yuan but not more than 200,000 yuan.
5. Laws and Judicial Interpretations
[Criminal Law Provisions]
Article 161 A company provides false financial accounting reports to shareholders and the public Or concealing important facts, seriously damaging the interests of shareholders or others, the person directly in charge and other directly responsible persons shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined not less than 20,000 yuan but not more than 200,000 yuan. .
[Relevant Laws]
Article 212 of the "Company Law" If a company provides false financial accounting reports to shareholders and the public or conceals important facts, it shall be directly responsible for The person in charge and other directly responsible personnel shall be fined not less than RMB 10,000 but not more than RMB 100,000. If a crime is constituted, criminal liability shall be pursued in accordance with the law.
[Judicial Interpretation]
Regulations of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crime Cases 2001.5:
5. Cases of Providing False Accounting Reports (Criminal Law Article 161)
If a company provides false financial accounting reports or conceals important facts to shareholders and the public, and is suspected of any of the following circumstances, it shall be investigated:
1. Reporting to shareholders or concealing important facts Causing direct economic losses of more than 500,000 yuan to others;
2. Causing the stock to be disqualified from listing or forced to suspend trading.