If it is a salesman's unilateral operation, it belongs to the crime of job embezzlement.
Criteria for filing the crime of duty embezzlement;
1997 promulgated Article 27 1 of the Criminal Law stipulates that "personnel of companies, enterprises or other units who take advantage of their positions and illegally accept property of their own units shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated. "
According to the provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the standards for prosecuting economic crimes. Employees of companies, enterprises or other units who take advantage of their positions and illegally take the property of their own units for themselves, with the amount of more than 5,000 yuan and less than 654.38+0,000 yuan, shall be prosecuted. The amount here should be calculated from the accumulated amount.
According to the filing standards jointly promulgated by the Shanghai Higher People's Court and the Procuratorate, Article 271 of the Criminal Law is the crime of duty embezzlement. The amount of job occupation is more than 6.5438+0.5 million yuan but less than 6.5438+0.00 million yuan, which is the starting standard of "large amount". The amount of duty occupation is more than 654.38+10,000 yuan, which belongs to the starting penalty standard of "huge amount".
Relevant regulations:
First, the concept and its composition
(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 using the position convenience, only using the work convenience, such as being familiar with the environment, easy to integrate into the scene, easy to get close to the target 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. , and including the use of his position, not to possess the property of the unit first, but to defraud, steal, embezzle and divide it up, thus turning it into a private ownership. 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.
Second, identify
(1) The boundary between this crime and the crime of corruption is 1, and the main elements are different. The subject of this crime is the personnel of companies, enterprises or other units. All employees who do not have the status of national staff, whether they are joint stock companies or limited liability companies, or state-owned companies, enterprises, Sino-foreign joint ventures, Sino-foreign cooperation, collective enterprises, wholly foreign-owned enterprises and private enterprises. , can become the subject of this crime. The subject of the crime of corruption is limited to state functionaries, including exercising management authority in state-owned companies, enterprises or other companies and enterprises.
Persons with the status of national staff include those who are appointed or employed by state-owned companies or enterprises, who exercise management authority in non-state-owned units such as Sino-foreign joint ventures, cooperation, joint-stock companies and enterprises as representatives of state-owned companies and enterprises, and have the status of national staff.
2. Criminal behavior is different. This crime is an act of taking advantage of his position to occupy the property of the unit. The crime of corruption refers to the act of embezzling, stealing and defrauding public property by taking advantage of his position.
3. The targets of crimes are different. The object of this crime must be the property operated by the unit within its authority or scope of work. It may be public property or private property. Corruption can only be public property.
4. The requirements of plot elements are different. The constitution of this crime must be the act of occupying a large amount of property of a company or enterprise, and a small amount does not constitute a crime. However, the law does not limit the amount of corruption. Of course, if the amount of crime is small, corruption with obvious circumstances and little harm should not be considered as a crime.
5. The statutory punishment is different. The maximum legal penalty for this crime is only 15 years imprisonment, while the maximum legal penalty for corruption is the death penalty.
(two) how to deal with the nature of the occupation of the property of the unit by personnel with the status of national staff and personnel of companies, enterprises or other units?
There are two different opinions on this: one is to characterize the principal offender according to the basic characteristics. If the principal offender has the status of national staff, then all accomplices are convicted of corruption; If the principal offender is a member of a company, enterprise or other unit, then an accomplice with the status of a state functionary should be convicted of embezzlement. Another opinion is that if the principal offender is a company, enterprise or other unit, then the whole case is convicted of embezzlement; If the principal offender is a state functionary, he shall be convicted separately. State functionaries are convicted of corruption, and employees of companies, enterprises or other units are convicted of embezzlement. We basically ask the second opinion for practical reference only.
(3) the boundary between this crime and theft
Both crimes are crimes against property ownership for the purpose of illegal possession. The main differences between the two are:
1, subject elements are different, the subject of this crime is a special subject, and the subject of theft is a general subject.
2, the object of crime is different, the object of this crime can only be the property of the unit; The object of theft is other people's property, including public and private property, and most of them are other people's property that was not controlled by themselves before the crime.
3. Different modus operandi. This crime is to take advantage of his position to occupy the property of the unit actually in charge; Theft is the act of secretly stealing other people's property.
4. The statutory punishment is different. The statutory maximum penalty for this crime is fifteen years' imprisonment for interacting with friends, which is relatively light and the sentencing range is small; The highest legal punishment for theft is death penalty, and the sentencing range is wide.
(4) The boundary between this crime and fraud.
Both crimes are acts of violating property ownership for the purpose of illegal possession. The main differences between them are: 1, the subject elements are different, and the subject of this crime is a special subject, which must be the personnel of companies, enterprises or other units; The subject of fraud is the general subject.
2. The targets of crimes are different. The object of this crime is the property of the company that the actor has actually mastered, while the object of fraud is the property of others that he has not actually controlled.
3. Criminal behavior is different. This crime is to take advantage of his position to occupy the property of the unit; The crime of fraud is to defraud others of their property by using fictional facts or concealing the truth.
(5) The boundary between this crime and the crime of embezzlement is difficult to define.
1, the subject of this crime is the staff of companies, enterprises or other units, and non-state staff are special subjects; The subject of the latter is the general subject, that is, a natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility.
2. Subjectively, this crime is manifested as knowing that it is the property of the unit and determined to illegally possess it by means of embezzlement, theft and fraud; Then, the subjective content of the crime is determined as possessing property, forgetting things or buried objects kept by others and refusing to return them.
3. This crime is objectively manifested as taking advantage of his position to illegally take the property of the unit for himself, that is, turning public into private. However, the actor must take advantage of his position to take the means of embezzlement, theft and fraud, but whether the property has been occupied by him first does not affect the establishment of this crime; The latter must first properly, kindly and legally possess other people's property, and then take it for himself by various means and refuse to return it. This kind of behavior does not need to take advantage of his position.
4. The object of this crime is the property of companies, enterprises or other units, including state-owned, collective and individual property. The latter crime only infringes on three special objects of others, namely, other people's property, forgetting things or buried objects kept for themselves. Others only refer to individuals, not units.
5. The object of this crime is the ownership of public and private property; Then the crime only infringes on the property ownership of others.
6. This crime does not belong to telling to handle a case, while the latter only tells to handle it.
Third, punishment.
Whoever commits this crime and the amount is relatively large shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.