1. Event: On 20 19, 10, Mr. Dang went to a branch of a bank to handle the withdrawal business and wrote down the withdrawal amount of 4,000 yuan on the withdrawal voucher. However, due to the carelessness of the bank teller Zhao, he mistakenly paid 40,000 yuan to the client. According to the internal regulations of the bank, Zhao will first repay Mr. Dang's overpayment of 36,000 yuan to the bank, and the bank branch promises that Zhao will recover from Mr. Dang on his behalf. Later Zhao consulted Mr. Dang many times and asked him to return the overcharged 36,000 yuan. However, when Mr. Wang returned 10000 yuan, he evaded the remaining 26,000 yuan for various reasons and refused to return it. In desperation, Zhao chose to file a lawsuit with the court.
After the trial, the court held that when the defendant handled the withdrawal business at the bank branch, the withdrawal voucher stated that the withdrawal amount was 4,000 yuan, but due to the plaintiff's work mistake, the actual withdrawal amount was 40,000 yuan, and the defendant's overpayment of 36,000 yuan constituted unjust enrichment and should be returned to the bank branch. Now the plaintiff has returned 36,000 yuan to the branch in advance, and the branch has issued a certificate allowing the plaintiff to claim compensation from the defendant on his behalf, so the defendant should return the plaintiff and pay interest. ? In accordance with the provisions of Article 122 of the General Principles of Civil Law of People's Republic of China (PRC) and Article 142 of the Civil Procedure Law of People's Republic of China (PRC), the defendant Mr. Dang was sentenced to return Zhao's unjust enrichment of 26,000 yuan and interest.
Second, does the Party constitute a crime of embezzlement? Regarding civil relations, the above judgment has already explained. Let's talk about the criminal provisions. For the refusal of the parties to return, the bank filed a criminal private prosecution with the court. Will the parties constitute a crime of embezzlement and will they go to jail? Let's look at the criminal law:
Article 270 of the Criminal Law: Whoever illegally occupies other people's property for safekeeping and refuses to return it in a large amount shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years and shall also be fined.
Whoever illegally takes forgetting things and buried objects of others for himself and refuses to hand them over in a large amount shall be punished in accordance with the provisions of the preceding paragraph.
This crime can only be dealt with if it is spoken.
1. "Other people's property is kept on behalf of others": It can be seen from the law that the way in which the property keeper obtains the property is legal, good-natured and just, and it is based on the true meaning of both parties, such as custody and entrusted custody. Illegal possession of other people's property is not regulated by this law. Based on misunderstanding, the bank staff paid 40,000 yuan as 4,000 yuan to the party. It is not easy to draw a conclusion whether this way of obtaining is illegal, at least it is not legal in good faith and will not be based on the true meaning of both parties. Besides, giving the wrong money can't be called "keeping it for you". Therefore, from this perspective, Dangmou does not constitute a crime of embezzlement.
2. "Large amount": There is no uniform provision for this amount standard in the whole country, which is formulated by various provinces and cities. The author did not find the standard of Shandong. Judging from the standards of other provinces and cities, the amount of more than 20 thousand yuan in this case is up to the standard of criminal filing.
3. The crime of embezzlement is the only case of pure private prosecution in criminal law. The crime of embezzlement is a case of pure private prosecution, that is, the parties should personally file a criminal private prosecution with the court, and the public security and procuratorial organs will not accept the case of embezzlement.
Thirdly, the author's views on this incident and the crime of embezzlement: most of the crimes stipulated in the criminal law have detailed provisions on conviction, sentencing standards and punishment in relevant judicial interpretations, while the crime of embezzlement does not, and provinces and cities only clarify the two standards of the amount of the crime. The author believes that the guiding significance of the establishment of this crime is greater than the practical significance.
1 is to punish special "malice". From the legal point of view, there are only three kinds of cases that can commit this crime, namely, the property kept on behalf of others, forgetting things and buried objects. If the custodian doesn't want to return it, it is a typical civil dispute to lie about the loss or loss of the property he keeps, not to mention the problem of incrimination. Only the trustee blatantly said "I just don't pay you back" was suspected of committing a crime. In real life, is there such bullying? Yes, very few. Others will leave their property with you based on some kind of trust, but you have no reason to possess it. This kind of behavior that seriously undermines public order and good customs should be severely punished!
2. The crime of embezzlement is a pure crime of private prosecution. The initiative is in the hands of the private prosecutor whether to file a private prosecution, whether to settle the case or not, and whether to withdraw the case. I know that if I dare to seize other people's property and be sued in court, I will face the problem of going to jail. What fool will not compromise? Therefore, this crime also lies in protecting the property rights of the parties through deterrence.
We always think that the wicked should be punished more severely, as well as those who occupy other people's money for no reason. However, judging from the modesty of criminal law, strict laws may not be able to pursue greater social benefits, and problems that can be solved in other milder ways should not always be considered in criminal law. Punishment is not a joke, but a negative evaluation of a person, which affects a lifetime!
Conclusion: Do you agree with this explanation? Please express your opinions!