Embezzlement refers to the act of a person of a company, enterprise or other unit, using the convenience of his position to illegally take the property of the unit for himself.

    1. Object Elements

    The criminal object of this crime is the property ownership of companies, enterprises or other units. The term "company" here refers to non-state-owned limited liability companies and joint stock limited companies established in accordance with the "Company Law of the People's Republic of China"; A for-profit economic organization with a certain amount of registered capital and a certain number of employees approved by the management authority, such as shops, factories, restaurants, hotels, various service industries, transportation industries and other economic organizations; other units are Refers to non-state-owned social groups 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 occupational embezzlement is the property of a company, enterprise or other unit, including movable and immovable property. The so-called "movable property" does not only refer to the money that has been occupied and managed by the company, enterprise, and other units (including RMB, foreign currency, Securities, etc.), and also includes property that the unit has the right to possess but does not possess, such as the creditor's rights owned by a company, enterprise or other unit. In terms of the form of property, criminal objects include tangible and intangible objects, such as factories, electricity, gas, natural gas, industrial property rights, and so on.

    2. Objective requirements

    The objective aspect of this crime is to use the convenience of one's position to embezzle the property of the unit. Specifically, the behavior of a relatively large amount includes the following three aspects:

    1. It must be to take advantage of the convenience of one's own position. The so-called utilization of the convenience of one's position refers to the use of power and the convenience related to the position. Power refers to the power within the scope of one's position and position, and the convenience related to the position, which refers to the convenience formed by taking advantage of one's power or status although not directly using the position or the authority on the position, or To take advantage of position or position through another person. Including: (1) Use your own power to be in charge, in charge, handle, decide or deal with certain matters, etc.; (2) Rely on or rely on your own power to command, influence subordinates or use other personnel's powers related to positions and positions. Authority; (3) Relying on, relying on authority, status to control, control other personnel, or use authority to ask for oneself, such as unit leaders use the power to allocate and dispose of unit property; cashiers use the right to handle and manage money; general The employees use the unit to temporarily hand over their property, such as houses, to their own use and custody. As for not taking advantage of the position, but only taking advantage of the convenience of work, such as familiarity with the environment, easy access to the scene, easy access to the target, etc., even if the property is obtained, it does not constitute the crime. Punishment of crime.

    2. There must be an act of encroachment. The property of the unit refers to all the property legally occupied by the unit, including all real rights, intangible property rights and creditor's rights owned by the unit in its own name or not in its own name but occupied by the unit. The so-called illegal possession refers to the use of various means such as embezzlement, stealing, and defrauding to turn the property of the unit into private ownership, which includes treating the property that has been legally held as one's own and disposing, using, and storing it. Possession is the act of possession, and also includes the act of defrauding, stealing, embezzling, and privately dividing into private property by taking advantage of the position without first possessing the property of the unit. Whether it is first possessed and then transferred to one's own possession, or firstly not possessed and taken into possession by means of embezzlement, stealing, or defrauding, as long as it is essentially for the purpose of illegal possession and takes advantage of the position, such illegal possession is made. It means that if the standard of a relatively large amount is reached, this crime can be constituted.

    3. It must reach a relatively large amount. If there is only an act of illegally embezzling the property of a company, enterprise or other unit, but the standard of a relatively large amount is not met, this crime cannot be constituted.

    3. Main Elements

    The subject of this crime is a special subject, including personnel of companies, enterprises or other units, and specifically refers to three natural persons with different identities.

    The first is the directors and supervisors of joint stock limited companies and limited liability companies. These directors and supervisors must not have the status of state staff. They are the actual leaders of the company and have certain powers. Of course, they can become the subject of this crime.

    Second, the personnel of the above-mentioned companies refer to managers, department heads and other general staff and workers other than the directors and supervisors of the company. These managers, department heads and employees must also not have the status of state staff. They either have specific powers, or because they are engaged in certain jobs, they can use their powers or work to embezzle the company's property and become the subject of this crime.

    The third is the personnel of enterprises or other units other than the above-mentioned companies, which refers to the employees of collective enterprises, private enterprises, wholly foreign-owned enterprises, and all employees of state-owned enterprises, companies, Sino-foreign joint ventures, Sino-foreign cooperative enterprises, etc. who do not have the status of state staff.

    4. Subjective Elements

    This crime is directly intentional in the subjective aspect, and has the purpose of illegally occupying the property of a company, enterprise or other unit. That is, the perpetrator attempts to obtain the right to possess, benefit, and dispose of the property of the unit economically. Whether or not these rights have been acquired or exercised does not affect the constitution of the crime.

    1. Crimes of Embezzlement and Corruption

    1. The relationship and difference between the crime of embezzlement and the crime of embezzlement

    There is a close relationship between the crime of embezzlement and the crime of embezzlement. The main similarities between the two are: the objective aspect is to use the convenience of the position; the subjective aspect is constituted by intention; the behavior is the illegal possession of the property of the unit.

    The differences between the two are as follows: (1) The subjects are different. The subjects of the crime of occupational embezzlement are employees of companies, enterprises or other units, while the subjects of the crime of embezzlement are limited to state functionaries, including employees in state-owned companies, enterprises or other entities. Persons who exercise management powers in other companies and enterprises and have the status of state staff, including those appointed or hired by state-owned companies or state-owned enterprises, as representatives of state-owned companies and state-owned enterprises, in Sino-foreign joint ventures, cooperation, joint-stock companies, enterprises and other non-state-owned companies In the unit, a person who exercises management power and has the status of a state staff member. (2) The object of crime is different. The object of the crime of occupation embezzlement is the property of the unit, which may be public property or private property, while the crime of embezzlement can only be public property. (3) The amount requirements are different. The starting point of the "large amount" and "huge amount" in the crime of embezzlement shall be twice or five times the amount specified for the crime of embezzlement.

    2. The joint crime of the crime of embezzlement and corruption

    According to the Interpretation of the Supreme People's Court on Several Issues concerning How to Determine Joint Crimes in the Trial of Cases of Corruption and Embezzlement (Fa Shi [2000] No. 15), the perpetrators colluded with state officials and took advantage of the convenience of state officials to jointly embezzle , stealing, defrauding or illegally occupying public property by other means, shall be punished as an accomplice in the crime of embezzlement. Where the perpetrator colluded with the personnel of the company, enterprise or other unit, and took advantage of the position of the personnel of the company, enterprise or other unit to illegally appropriate the property of the unit as his own, if the amount is relatively large, he shall be punished as an accomplice in the crime of embezzlement by position.

    3. The distinction between the crime of occupational embezzlement and the crime of embezzlement in false claims settlement

    According to Article 183 of the Criminal Law, if a staff member of an insurance company takes advantage of his position to deliberately fabricate an insurance accident that has never occurred to make false claims, and defraud the insurance money to be his own, according to Article 271 of the Criminal Law It is stipulated that the crime of embezzlement shall be convicted and punished. However, if a staff member of a state-owned insurance company or a person appointed by a state-owned insurance company to perform official duties in a non-state-owned insurance company commits the above-mentioned acts, they shall be convicted of the crime of embezzlement in accordance with the provisions of Articles 382 and 383 of the Criminal Law penalty.

    2. Crimes of Embezzlement and Misappropriation of Funds

    The main similarities between the crime of occupational embezzlement and the crime of misappropriation of funds are as follows:

    (1) The subject of the crime is the staff of a company, enterprise or other unit.

    (2) The property rights of companies, enterprises or other units are violated.

    (3) The objective aspect is to use the convenience of the position.

    The difference between the two is mainly in the following two aspects:

    (1) The objects of crimes are not the same. The object of the crime of embezzlement is the property of the unit, including both money and things; and the object of the crime of misappropriation of funds can only be the funds of the unit.

    (2) The intentional content of the crime is different. The intentional content of the crime of occupational embezzlement is for the purpose of illegally taking it for oneself, and it is not intended to be returned at all; while the intentional content of the crime of misappropriation of funds is only to temporarily use the funds of the unit and prepare to return it in the future.