Defendant Jiang Moumou is the driver of the team of Anhui Blast Furnace Winery. One day in June, 2002 165438+ 10, Jiang moumou drove to a bank in Xuzhou, and after exchanging large face value RMB for small face value RMB, he thought there was an opportunity, so he planned with Huang Chaojun, the defendant's individual taxi driver, to steal his company's cash when he went out to exchange RMB again, and discussed the method of committing the crime, drawing a road map for Huang Chaojun and providing his own Santana car. On the morning of June 5438+February 65438+February 20, 2002, the defendant Jiang informed Huang Chaojun by telephone after learning that the unit had sent him to Xuzhou to exchange money. At noon 1 o'clock on the same day, Jiang arrived in Xuzhou under the escort of the factory, parked his car S30 1 13 Santana with 625,000 yuan in cash in the waterfront apartment of Xuzhou Institute of Education and left. Huang Chaojun used the gap to open the trunk with the car key given by Jiang Moumou in advance, and fled the scene after stealing cash of RMB625,000. 65438 On February 25th, 2002, the defendant Huang Chaojun surrendered himself to Guoyang County Public Security Bureau with illicit money of 665438 yuan+8050 yuan. In addition, on February 1 2002, Huang Chaojun was sentenced to one year's imprisonment and suspended for two years by the Guoyang County People's Court for intentional injury.

Second, how to identify the crime of duty embezzlement.

The focus of this case is: did the defendant Jiang Moumou take advantage of his position or just take advantage of his familiarity with the working environment when he illegally possessed the property of his unit? In other words, does the defendant Jiang Moumou have the responsibility to take care of the illegally occupied unit property before implementing the possession behavior? In the trial of this case, there are different understandings on how to characterize Jiang's behavior: the public prosecution agency and the court of first instance believe that he should be convicted of theft, on the grounds that the defendant Jiang is the driver of the accident unit, and according to the nature of his work, he does not have the responsibility to directly handle and manage the public funds of the unit; Before the incident, although he was sent to Xuzhou by the unit to exchange cash while driving a huge sum of money, because the unit has sent another person to escort the vehicle, he only has the responsibility to drive safely in and out of the vehicle, but has no obligation to keep the public funds of the vehicle; The two defendants succeeded in secretly stealing the public funds of the defendant Jiang Moumou, mainly by taking advantage of the defendant Jiang Moumou's familiarity with his working environment and understanding of the company's business information, rather than taking advantage of the defendant Jiang Moumou's position. Another view is that the crime of duty embezzlement should be defined. The reason is that the second defendant * * * took advantage of the fact that the defendant Jiang Moumou was actually responsible for keeping the public funds placed in the trunk of the bus he was driving on his way to and from the company, and adopted the means of secret theft, which was in line with the characteristics of the crime of occupational embezzlement.

We believe that the crime of duty embezzlement and theft are similar in objective behavior, both of which can be manifested as illegal possession of other people's property by secret stealing. The difference between them mainly lies in whether the actor takes advantage of his position; The main difference is that the crime of duty embezzlement is a special subject, which only refers to the personnel of the infringed property unit, while theft is a general subject. The "taking advantage of one's position" in the crime of embezzlement by taking advantage of one's position is different from the "taking advantage of one's position" in the crime of corruption, which includes not only supervising and managing one's own property in one's own unit by taking advantage of one's position, but also legally holding, keeping, using and controlling one's own property in one's own unit by taking advantage of one's position. Even if the actor uses temporary assignment or authorization to engage in labor services, it belongs to taking advantage of one's position.

If the actor takes advantage of the above-mentioned work convenience and illegally occupies the property of his unit, he shall be convicted and punished for the crime of embezzlement by taking advantage of his position. In judicial practice, we should pay attention to the difference between using the convenience of position and using the convenience of being familiar with the working environment and understanding relevant information. Generally speaking, taking advantage of his position means that the actor has legally controlled the property based on his position convenience, and once he subjectively has the purpose of illegal possession, he can use this convenience to achieve the purpose of crime; Knowing relevant information by using familiar working environment means that the actor is easy to get close to the property that is not owned, kept or used by himself or knows relevant information, but he does not legally control the property based on his position. The actor can't take advantage of this convenient condition to directly and illegally possess property, and only by further secretly stealing can he achieve the purpose of illegal possession.

In this case, when Jiang Moumou was driving as a unit driver, he put the unit public funds into the trunk of the car he controlled, and the escort had to use Jiang Moumou's key to open the trunk to complete the putting in and taking out of the public funds. Therefore, Jiang Moumou has the obligation to keep the public funds that have been actually controlled by him. First of all, from the premise, Jiang Moumou was appointed by the unit to drive to Xuzhou to exchange cash, which has the nature of accepting work tasks and performing post duties, so the fact that he actually controls the cash of the unit is objectively formed based on his position and leadership assignment; Secondly, from the reality, because he has actually mastered the key of the car trunk, the escort's obligation to keep and exchange the vehicle-mounted public funds must be based on his participation and assistance, forming a de facto state of keeping the vehicle-mounted public funds with the escort; Thirdly, from the point of view of consequences and responsibilities, although the unit leader did not inform him of the obligation to keep public funds on the vehicle before leaving the vehicle, if public funds were stolen because he accidentally lost the key to the trunk of the vehicle, just as the bus was stolen because he lost the key to the vehicle, the unit has reason to pursue the corresponding responsibilities because of his dereliction of duty. Therefore, its responsibility for the custody of on-board public funds is implied in its obligation to properly keep the bus it drives. The court of second instance found that he took advantage of his position to illegally occupy the public funds of his unit, and it was correct to be convicted and punished for the crime of occupational embezzlement.

Extended reading:

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