The criminal law and the judicial interpretation of the crime of embezzlement of public funds

 

 

 

   A, punishmentMethod

 

    Article 185th(the crime of misappropriation of funds)Commercial banks, stock exchanges, securities companies, futures exchange, futures Broker's Firm, insurance company or other financial institutionsPersonnel who take advantage of their office, misappropriation of the unit or customer funds, in accordance with the provisions of article 272nd convicted and punished.
(the crime of misappropriating public funds) stateCommercial banks, stock exchanges, securities companies, futures exchange, futures Broker's Firm, insurance company or any other state owned financial institutionsStaff and state-owned commercial banks, stock exchanges, securities companies, futures exchange, futures Broker's Firm, insurance companies or other state-owned financial institution that is not owned by the state agencies mentioned in the preceding paragraph of personnel engaged in official business with the conduct, in accordance with the provisions of article 384th convicted and punished.

    Article 272nd(the crime of misappropriation of funds) companies, enterprises or other units of staff, taking advantage of his position, misappropriation of the funds for personal use or lending to others, larger, more than three months without further, or are not more than three months, but the amount is larger, for-profit activities, or illegal activities, is less than three years imprisonment or criminal detention; misappropriation of the huge amount of money units, or larger amount of non refundable, three to ten years in prison.
(the crime of misappropriating public funds) State-Owned Company, enterprise or any other state owned units engaged in public service and State-Owned Company, enterprise or any other state owned units assigned to non State-Owned Company, enterprise or other unit personnel engaged in official business with the conduct, in accordance with the provisions of article 384th convicted and punished. 　

    Article 384th (the crime of misappropriating public funds)State personnel who take advantage of their office, embezzlement of public funds for personal use, illegal activities, or larger amount of misappropriation of public funds, for-profit activities, or larger amount of misappropriation of public funds, more than three months without further, is the crime of misappropriation of public funds, is less than five years imprisonment or criminal detention; if the circumstances are serious, more than five years in prison. The huge amount of misappropriation of public funds is not returned, department for more than ten years of fixed-term imprisonment or life imprisonment.
Appropriated for disaster relief, rescue, flood prevention, special care, poverty, immigration, relief funds and materials for personal use, shall be given a heavier punishment. 　

 

   Two, the judicial interpretation

 

     The Supreme People's court "approved" on the calculation of the period for prosecution to crime of misappropriation of public funds -- act release No. [2003]16

According to the provisions of article eighty-ninth of the criminal law, article 384th, embezzlement of public funds for personal use, illegal activities, or larger amount of misappropriation of public funds, for-profit activities, the period for prosecution of crimeFrom the implementation date of completionCalculation; larger amount of misappropriation of public funds, more than three months without further, the period for prosecution of crimeFrom the founding date of the crime of embezzlement of public fundsCalculation. Embezzlement act is of a continuous state, the period for prosecution of the crime should beFrom the last act of misappropriating the implementation date of the end of the crime or the date of the establishment of theCalculation of.

　　

    The Supreme People's Procuratorate "about the misappropriation of the unemployment insurance fund and the off-duty workers basic life safeguard replied" behavior legal issues for the application of funds -- 2003.01.28

   The unemployment insurance fund and the off-duty workers basic life safeguard funds belonging to the misappropriation of relief funds and materials. The unemployment insurance fund and the off-duty workers basic life safeguard funds, if the circumstances are serious, resulting in serious damage to the country and the interests of the masses, the persons who are directly responsible shall, in accordance with the provisions of article 273rd of the criminal law, in order to divert the specific funds shall be investigated for criminal responsibility; state functionaries by taking advantage of his office, the unemployment insurance fund and the laid-off the basic living guarantee fundFor personal use,Constitute a crime, shall be in accordance with the provisions of article 384th of the criminal law on the crime of misappropriating public funds, shall be investigated for criminal responsibility. 

 

   The Supreme People's court "on several issues of specific application of the law cases of embezzlement explanation" -- act release No. [1998]9

   In order to punish the crime of misappropriation of public funds, according to the relevant provisions of the criminal law, the problems of application of law for embezzlement cases are interpreted as follows:

   The first article of the criminal law 384th stipulation "embezzlement of public funds for personal use", including the diversion of himself or to use others to use.

Misappropriating public funds to private Private Held Company, enterprise use, belonging to the embezzlement of public funds for personal use. 　　

   Article second for the crime of embezzlement of public funds, we should distinguish three different circumstances to be identified:

(a) embezzle public funds for personal use, larger, more than three months without further, constitute the crime of misappropriation of public funds.

Misappropriation is interest or need to pay interest on public funds for personal use, larger, more than three months but at the front all the return of the principal, he may be given a lighter punishment or be exempted from punishment. To the state, collective interest rates caused losses shall be recovered. The huge amount of misappropriation of public funds, more than three months, he returned in full, can be punished more leniently.

(two) larger amount of misappropriation of public funds, individual for-profit activities, constitute the crime of misappropriating public funds, not by stealing time and whether to limit. In the first part or all of the return of principal and interest, may be given a lighter punishment; if the circumstances are minor, may be exempted from punishment.

The embezzlement of public funds in the bank, for raising, buying stocks, bonds, and belongs to the embezzlement of public funds for profit-making activities. Acquired interest, income and other illegal income, shall be recovered, but not included in the amount of misappropriation of public funds.

(three) embezzle public funds for personal use, gambling, smuggling and other illegal activities, constitute the crime of misappropriation of public funds, not by the "large amount" and the time limit.

Misappropriating public funds for others to use, do not know the use of public funds for profit-making activities or for illegal activities, the amount is larger, more than three months without further, embezzlement of public funds; knowingly used for profit-making activities or illegal activities, shall be deemed as the appropriation embezzlement of public funds for profit-making activities or illegal activity. 　　

Article third embezzlement of public funds for personal use, "larger, for-profit activities", or "large amount, more than three months without further", toThe embezzlement of public funds of ten thousand yuan to thirty thousand yuan for the starting point of "large amount", toThe embezzlement of public funds of one hundred and fifty thousand yuan to two hundred thousand yuan for the starting point of "huge amount". The embezzlement of public funds "serious", refers to the embezzlement of public fundsA huge amount of, orAlthough the amount does not meet the huge, but the embezzlement of public funds means bad; misappropriation of public funds; embezzlement serious impact on production and operation, causing serious damage to the case.

"Embezzlement of public funds for personal use, illegal activities," toThe embezzlement of public funds of five thousand yuan to ten thousand yuanThe starting point for the amount shall be investigated for criminal responsibility.The embezzlement of public funds of fifty thousand yuan to one hundred thousand yuanOf, belonging to the embezzlement of public funds for personal use, illegal activities, "one case of serious circumstances". Embezzle public funds for personal use, illegal activities, other circumstances, if the circumstances are serious, in accordance with the provisions of the first paragraph of this article.

　　Each higher people's courtAccording to the local actual situation, in accordance with the provisions of this interpretation of the amount, determine the local area executes the specific amount of standard, and submitted to the Supreme People's court filing.

The disaster relief, rescue, flood prevention, special care, poverty, immigration, and social reliefFor personal use amount of standard, referenceThe embezzlement of public fundsFor personal use for illegal activitiesThe amount of standard.

   Article fourth of misappropriation of public funds is not yet, the calculation of accumulative amount of misappropriation of public funds; misappropriation of public funds, and after the time misappropriated funds returned to previous misappropriation of public funds, embezzlement amountTo the unpaid amountIdentification of.

   Fifth "huge amount of misappropriation of public funds without returning", refers to the huge amount of misappropriation of public funds,Due to objective reasons in the first instance verdict beforeA non refundable.

   Article SixthCarry the misappropriation of public moneyIn accordance with the provisions of the criminal law, article 382nd, article 383rd convicted and punished. 　　

   Article seventh for embezzlement, taking bribes from constitutes a crime, shall be punished in accordance with the provisions of punishment.

   The embezzlement of public funds for illegal activity constitutes another crime, shall be punished in accordance with the provisions of graft.

   Article eighth the embezzlement of public fundsFor others to use, the use of people and other people involved in the planning made by collusion, or misappropriation of funds,In order to embezzlement accomplice convicted and punished.

 

  Interpretation of the Standing Committee of the National People's Congress on the "PRC Criminal Law '' 384th section first"-- 2002.4.28

Any of the following circumstances, belong to "Misappropriating Public Funds for personal use":

(a) the money for himself, his relatives or other natural persons use;

(two) in the name of the public money for other units use;

   (three) individual decisions in the name of the unit will use the money for other units, seek personal interests.

  The Supreme People's court "about how to identify the embezzlement of public funds for personal use" -- Explanation of the problems concerning the Interpretation No. [2001]29

   In order to punish the crime of misappropriation of public funds, according to the relevant provisions of the criminal law, now how to determine embezzlement of public funds for personal use of the related problems are explained in the following:

   The first national staff using the convenience of duty, in the name of the public money to other natural person or do not have the qualifications of a legal person of private enterprise, private partnership enterprises use, belonging to the embezzlement of public funds for personal use. 　　

   Article second the state personnel who take advantage of their office, to seek personal interests, in the name of the public money to other units use, belonging to the embezzlement of public funds for personal use. 　　

   Third after the implementation of these interpretations, our hospital prior to the release of the judicial interpretation of the relevant contents are inconsistent with this interpretation, is no longer applicable. 

 

 The Supreme People's court, the court cases involving economic crimes "seminar" -- 2003.11.13

    Four, about the crime of embezzlement of public funds

(a) the unit decided to found public funds for personal use behavior

AfterThe unit leadership collective research decisionWill public funds toPersonalThe use of, orThe person in charge of the unit to unit's benefit, decisionThe public funds for personal use, not to misappropriate public funds crime. The behavior of major losses in the unit, constitutes another crime, in accordance with the relevant provisions of the criminal law on the responsible persons convicted and punished.

(two) the embezzlement of public fundsFor other units useAct

According to the National People's Congress Standing Committee "on the" PRC Criminal Law > 384th section first of the interpretation of "regulations," toThe name of the individualThe money supplyOther unitsThe use of","Individual decisions in the name of the unitThe use of public money for other unitsSeek personal interests", belong to" Misappropriating Public Funds for personal use". In judicial practice, the use of public money for other units, that is "in the name of the individual", not only form, to grasp the essence. For the behavior ofAvoid financial supervision, agreement or and use them in the name of an individual, or borrowing, repayment in the names of individuals, using public money to other unitsUse, should be identified as "in the name of a person"."Personal decision" includes not only the behavior decisions within the scope of their respective functions, including beyond the remit decision."Personal interest", including the behavior of people and use themAgreed in advance to seek personal benefits actually has not yet acquired, including has not agreed in advance but actually has access toThe interests of the individual, the "personal interest", whichIncluding the improper interests, including the interests; includes property interests, alsoIncluding non property interests, but the non property interests should be the specific practical benefits, such as education, employment, etc.:

(three) the lower state owned units to the competent leadership of the legal personality of borrowed funds for personal use that

　　State owned unit leaderUsing the convenience of dutyInstructionSubordinate units have the qualifications of a legal person of public fundsFor personal use, belonging to the embezzlement behavior, constitute a crime, shall be convicted and punished for the crime of misappropriating public funds.

(four) the securities, financial instruments for determining pledge properties

Embezzlement of financial documents, securitiesTo pledge, make public money at risk,No substantial differences and provide guarantee for embezzlement of public funds for others. In line with the criminal law provisions on embezzlement, embezzlement of public funds, the conviction and punishment.Defalcate amount to actual or potential risk identification of amount.

(five) identification of appropriation return of individual credit behavior characteristics

Misappropriating public funds to personal debts, it shallAccording to the causes of debt are identifiedUnder what circumstances the embezzlement of public funds. The return of individual illegal activities or profit-making activities in arrears, shall be deemed as illegal activities as embezzlement or profit-making activities.

(six) for the determination of misappropriating public funds registered company, enterprise behavior

Registered capital is ready for production and business activities, a part of the company, the enterprise for profit-making activities: therefore, embezzlement of public funds for personal use, enterprises registered capital of the companyThe capital verification certificate, should be identified for profit-making activities for misappropriation of public funds.

(seven) the determination of embezzlement behavior after has not been put into practical use of

After misappropriation of public fundsHas not been put into practical useAnd, as long asAt the same time with "large amount" and "not more than three months also" elements, shall be determined asFor the crime of embezzlement of public funds, but can be punished more leniently.

(eight) the embezzlement of public funds into corruption identification

The main difference between the crime of embezzlement of public funds and corruption is the subjective purpose of illegal possession of public funds are: embezzlement whether into corruption, should according to the subjective and objective consistent principle, and identify the specific judgmentThe subjective purpose of illegal possession of public funds is. In the judicial practice, can have one of the following circumstances that the actor has the purpose of illegal possession of public funds:

1 according to the "Supreme People's Court on Several Issues concerning the specific application of law in trial of misappropriating public funds) regulations explain behavior" sixth carrying the misappropriation of public money ", the money part which carries the misappropriation, corruption crime.

2 people after defalcate take false invoice flat accounts, destruction of the relevant accounts and other means, the misappropriation of public funds have been difficult in the unit of financial accounts, reflected, and no return behavior, the crime of corruption should be punished.

The 3 act interception unit income is not recorded, illegal possession, the possession of public funds is reflected in the financial accounts, and no return behavior, the crime of corruption should be punished.

4 there is evidence to prove that the actor has the ability to return the misappropriation of public funds and refuse to return, and hide misappropriation of public funds whereabouts, the crime of corruption should be punished.

 

   The Supreme People's Procuratorate "on the national staff embezzlement of non specific public property can be convicted for approval" -- the high hair release [2000]1 words

   Article 384th of the criminal law of the crime of misappropriating public funds stipulated in theNot including the misappropriation of non specific public propertyFor personal use behavior, the behavior not to embezzlement crime. Such as constitutes another crime, in accordance with the relevant provisions of the criminal law of conviction and punishment.

　

   Official Reply of the Supreme People's Procuratorate "applicable law of misappropriating public funds to the Private Held Company, private enterprises to use the" behavior-- high hair research [2000]7

   Misappropriating public funds for private Private Held Company, enterprise behavior, no matter in the criminal law before and after revision, may constitute the crime of misappropriating public funds. As for the legal application specific behavior, should be based on the behavior of the time, in accordance with the law and in 1989 11 month 6 days of the Supreme People's court, the Supreme People's Procuratorate "on the implementation of '' Supplementary Provisions on punishment of crimes of embezzlement and bribery answers to some questions" and in May 9, 1998 the Supreme People's court"The relevant provisions on Several Issues on Application of law case explanation" for the misappropriation of public funds. 

    The Supreme People's court "on the entrusted management, management of state-owned property personnel misappropriating public funds behavior conviction replied" -- act release No. [2000]5 

   For by state organs, State-Owned Company, enterprises and institutions, people's organizations,Management, management of state-owned propertyTheNon national staff,Using the convenience of duty, misappropriating public funds for personal use constitutes a crime, shall be in accordance with the provisions of article 272nd of the criminal law of the provisions of the first paragraph of conviction and punishment. 

    Reply of the Supreme People's Procuratorate "about how to determine the nature of" appropriation bills-- high hair release [1997]5 words

   State personnel who take advantage of their office, misappropriation of public or the unit of Treasury debt to embezzlement; in accordance with article 384th of the criminal law, the provisions of the second paragraph of the 272nd case constitutes a crime, criminal responsibility shall be investigated according to the crime of embezzlement of public funds. 

    The Supreme People's court "reply" on corruption and embezzlement interest should be included in the embezzlement crime amount -- Method of complex [1993]11

Corruption, misappropriation of public funds (including bank deposit) to the front by corruption, misappropriation of public funds, the interest is a part of corruption, misappropriation of public funds behavior to victims unit causes the actual economic loss, should be regarded as illegal income defendants, together with its corruption, misappropriation of public funds together to recover, but not as a corruption, embezzlement crime amount calculation.

 

     The Supreme People's Procuratorate "about directly accepted by the people's procuratorates shall place the case on file for investigation cases on file standards (for Trial Implementation)"-- 1999.9.16

   (two) case of misappropriation of public funds (384th, second, 185th, 272nd second)

   The crime of misappropriating public funds refers to the state personnel who take advantage of their office, embezzlement of public funds for personal use, illegal activities, or larger amount of misappropriation of public funds, for-profit activities, or larger amount of misappropriation of public funds, more than three months without further action.

   Work personnel of state-owned financial institutions and state-owned financial institution that is not owned by the state financial institutions to engage in public service, using the convenience of duty, misappropriation of the unit or customer funds, shall be investigated for criminal responsibility in the crime of embezzlement of public funds.

   State-Owned Company, enterprise or any other state owned units engaged in public service and State-Owned Company, enterprise or any other state owned units assigned to non State-Owned Company, enterprise or other unit personnel engaged in official business, taking advantage of his position, misappropriation of the funds for personal use or lending to others, larger, more than three months without further, or not more than three months, but the amount is larger, for-profit activities, or illegal activities, shall be investigated for criminal responsibility in the crime of embezzlement of public funds.

   In one of the following circumstances, should be placed on file:

   1, embezzlement of public funds for personal use, amount to 10000 yuan in 5000 yuan, the illegal activities;

   2, the embezzlement of public funds in the amount of 10000 yuan to 30000 yuan of above, belong to individual for-profit activities;

    3, embezzlement of public funds for personal use, amount to 30000 yuan in 10000 yuan, more than 3 months without further.

   The people's Procuratorate at the provincial level according to the local actual situation, in the amount of range, determine the local area executes the specific amount of standard, and report for the record the Supreme People's procuratorate.

   "Embezzlement of public funds for personal use", including the diversion of himself, also include to others.

   Misappropriation of public funds not also, misappropriation of public funds to the calculation of accumulative amount of misappropriation of public funds; and later time misappropriated funds returned to previous misappropriation of public funds, embezzlement of public funds amount to the unpaid amount determination.

　 Misappropriating public funds for personal use of the other cases, the use of people and other people involved in the planning made by collusion, or misappropriation of funds, the use of the embezzlement accomplice shall be investigated for criminal responsibility.

    Four, annex

   (four) the provisions in respect of embezzlement crime "illegal activities", including criminal activities, but also includes other illegal activities.

 

    The Supreme People's court "about corruption, bribery, embezzlement crime according to the Several Provisions" correctly apply probation -- Law No. [1996]21

    Three, the following corruption, bribery, embezzlement crime not applicable probation:

(a) crime the country, collective and the people suffered major losses;

(two) no return, no repentance;

(three) the plot crime motive, means bad, or will be money for play the market, smuggling, gambling and other illegal activities;

(four) belong to the principal if the circumstances are serious common crimes, or commit several crimes;

(five) had received administrative punishment or criminal punishment for economic crimes of;

   (six) crime involving property belongs to the national disaster relief, rescue, flood prevention, allowances, relief funds and materials, if the case is serious.

 

    AllChinese people often "criminal law of the people's Republic of 'ninety-third' in the second paragraph explanation" ----2000.4.29

The villagers committee and village grassroots organization personnel to assist the people's Government in the following administrative work, which belongs to the criminal law provisions of the second paragraph of the ninety-third "engaged in official business in accordance with the law personnel":

(a) disaster relief, rescue, flood prevention, special care, poverty, immigration, the management of relief funds and materials;

(two) social charitable contributions to the cause of money and property management;

(three) the operation and management of state-owned land;

(four) the management of compensation for requisitioned land;

(five) generation of sign, and remit tax;

(six) the family planning, the household registration, recruitment;

(seven) other administrative work to assist the people's government in.

   The official village committee Village of grass-roots organizations in the provisions of the preceding paragraph, taking advantage of his position, illegal possession of public property, embezzlement, extort or accept bribes, which constitutes a crime, shall be governed by the provisions of article 382nd of criminal law and the 383rd crimes of corruption, misappropriation of public funds, 384th, 385th and 386th of bribery crime the.

  The Supreme People's Procuratorate on conscientiously implement the "Standing Committee of National People's Congress on the first paragraph of article 294th of the criminal law '' and 'explanation on article 384th of the criminal law first section explanation' notice" - high hair research [2002]11

   For the state personnel who take advantage of their office, the implementation of "interpretation" provides one of the three kinds of "Misappropriating Public Funds for personal use", regardless of the use of public funds is the nature of individual or unit and unit, shall be recognized as embezzlement of public funds for personal use, which constitutes a crime, shall be severely punished according to law.