(1) Object Requirements

The criminal object of this crime is the property ownership of a company, enterprise or other unit. The term "company" here refers to non-state-owned limited liability companies and joint-stock companies established in accordance with the provisions of the Company Law of the People's Republic of China; the term "enterprise" refers to non-state-owned companies other than the above-mentioned companies. For-profit economic organizations with a certain amount of registered capital and a certain number of employees established with the approval of the industrial and commercial administration authorities, such as shops, factories, restaurants, hotels and various service industries, transportation industries and other economic organizations; Other units refer 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 objects of the crime of official embezzlement are the property of companies, enterprises or other units, including movable and immovable properties. The so-called "movable property" does not only refer to money that has been occupied and managed by companies, enterprises, or other units ( Including RMB, foreign currencies, securities, etc.), and also includes property that the unit has the right to possess but does not possess, such as claims owned by companies, enterprises or other units. As far as the form of property is concerned, the objects of crime include tangible and intangible objects, such as factories, electricity, gas, natural gas, industrial property, etc.

(2) Objective elements

The objective aspect of this crime is to take advantage of the position to embezzle property of the unit. Specifically, the behavior of relatively large amounts includes the following three: Aspects:

1. You must take advantage of the convenience of your position. The so-called use of the convenience of your position refers to the use of authority and convenience provisions related to your position. Authority refers to the power within the scope of one's position and position. The convenience conditions related to one's position refer to the convenience conditions formed by taking advantage of one's authority or position, although one does not directly use one's position or authority in the position, or Taking advantage of one's position or status through other personnel. Including:

(1) Using one’s power to be in charge, in charge, handling, deciding or handling, and handling certain matters;

(2) Relying on and relying on one’s own power to command , Influence subordinates or take advantage of other personnel's authority related to their positions and positions;

(3) Rely on, rely on authority and status to control or influence other personnel, or use the authority of people who have desires for themselves, such as Unit leaders use the power to allocate and dispose of unit property; cashiers use the right to handle and manage money; general employees use the unit to temporarily hand over property, such as houses, for their own use and safekeeping, etc. As for those who do not take advantage of the convenience of their position, but only take advantage of the convenience of work, such as being familiar with the environment, easily blending into the scene, being easy to approach the target, etc., even if they obtain property, it does not constitute this crime. If it constitutes a crime, it should be treated as another crime. Punishment for theft.

2. There must be an act of misappropriation. The property of the unit refers to all property owned by the unit in accordance with the law, including all property rights, intangible property rights and creditor's rights owned by the unit in its own name or not owned in its own name but occupied by the unit. Its specific form can be buildings, equipment, inventory, cash, patents, trademarks, etc. The so-called illegal possession refers to the use of embezzlement, theft, fraud and other means to make the property of the unit private, including treating the legally held property of the unit as one's own and disposing, using and collecting it. The behavior of holding as one's own, such as falsely claiming that the unit house, equipment and other property owned by oneself is owned and selling it at a price; transferring the ownership of the unit house where one lives and registering it as one's own; or concealing and keeping things and falsely claiming that they are owned. It has been stolen, lost, damaged, etc., and it also includes the behavior of not possessing the unit's property but taking advantage of one's position to defraud, steal, embezzle, share it privately, and then convert it into private property. Regardless of whether it is first held and then turned into one's own, or one is not held first and turned into one's own by embezzling, stealing or defrauding, as long as it is essentially for the purpose of illegal possession and taking advantage of one's position to make such illegal possession If the intention is to express that the amount is relatively large, this crime can be constituted. It is worth noting that once the perpetrator's illegal misappropriation of the unit's property begins, it will continue. However, this is only the continuation of the illegal ownership status, not the continuation of the misappropriation of this crime.

The completion of the act of misappropriation shall be deemed to have been accomplished. As for the attempt, it should depend on whether the embezzlement is completed. If it is not completed, it should be punished as an attempt. If the accounting staff deliberately fails to enter a certain amount of payment into the account, but is discovered before the account can be settled in the future, he should be punished with this crime. Punishment for failure.

3. The amount must be relatively large

If there is only illegal misappropriation of property of a company, enterprise or other unit, but the amount does not reach the standard of relatively large amount, it cannot be constitute this crime. As for the starting point for larger amounts, refer to the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Laws in Handling Criminal Cases Violating Corporate Bribery, Misappropriation, Misappropriation and Other Criminal Cases", which refers to the misappropriation of property of companies, enterprises and other units from 5,000 yuan to 20,000 yuan. above.

(3) Subject requirements

The subject of this crime is a special subject, including personnel of a company, enterprise or other unit. Specifically, it refers to three natural persons with different identities. One is the directors and supervisors of joint stock companies and limited liability companies. These directors and supervisors must not have the status of state employees. They are the actual leaders of the company and have certain powers. Of course, can become the subject of this crime. The second is the personnel of the above-mentioned companies, which refers to managers, department heads and other general employees and workers other than company directors and supervisors. These managers, department heads and employees must also not have the status of state workers. They may have specific powers or engage in certain jobs and can use their powers or work to embezzle the company's property and become the subject of this crime. Three Personnel from enterprises or other units other than the above-mentioned companies refer to employees of collective enterprises, private enterprises, wholly foreign-owned enterprises, and all employees in state-owned enterprises, companies, Sino-foreign joint ventures, Sino-foreign cooperative enterprises, etc. who do not have the status of state staff. In summary, any person with the status of a state employee who takes advantage of his position or work to embezzle the property of his or her unit shall be punished in accordance with the provisions of Articles 382 and 383 of this Law on the crime of corruption. Anyone who does not have the status of a state employee shall If you take advantage of your position to embezzle the property of your unit, you will be punished as this crime. The "state staff" mentioned here refers to those who exercise management powers in state-owned companies, enterprises or other companies and enterprises, and have the status of state staff, including those who are appointed or hired by state-owned companies or enterprises as state-owned companies or enterprises. Representatives of state-owned enterprises are persons who exercise management authority in Sino-foreign joint ventures, cooperatives, joint-stock companies, enterprises and other non-state-owned companies and have the status of state staff. People with the status of state functionaries cannot be the subject of this crime.

(4) Subjective elements

The subjective aspect of this crime is direct intention and the purpose of illegally possessing the property of a company, enterprise or other unit. That is, the perpetrator attempts to obtain the economic right to possess, benefit from, and dispose of the unit's property. Whether these rights have been obtained or exercised does not affect the constitution of the crime.

Legal basis

Article 271 of the "Criminal Law of the People's Republic of China" Article 271: Employees of a company, enterprise or other unit shall take advantage of their position to Whoever illegally takes possession of property of the unit and the amount is relatively large shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than 10 years and shall also be fined; if the amount is particularly huge, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years and shall also be fined; shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment and shall also be fined. If a person engaged in official duties in a state-owned company, enterprise or other state-owned unit and a person assigned by a state-owned company, enterprise or other state-owned unit to a non-state-owned company, enterprise or other unit to engage in official duties commits the acts mentioned in the preceding paragraph, he or she shall be punished in accordance with Article 380 of this Law. Article 2 and Article 383 provide for conviction and punishment.