With the development of the Internet era, the development of the express delivery industry has formed a complete industrial chain.
However, once the enterprise employment and management mechanism is in place, the chaos of "illegal possession of express goods" is frequent, not to mention the property loss of the owner of the goods, and the credibility of the express delivery is gradually declining.
So, what is the determination of the crime of the courier's illegal possession of the express goods?
Case Summary
Wu, a Shanghai logistics Co., Ltd. express mail collector.
At about 8 o'clock on June 27, 2014, when the defendant Wu was sorting the express mail that needed to be delivered on that day, he took an express item with a total value of RMB 58,000 that had been identified as being scanned and took it out of the company's illegal possession along with other express mail that needed to be delivered.
At the same time, this express item is not within the scope of Wu's delivery.
On July 9, 2014, the victim's unit reported the case to the public security organs, and on July 29, 2014, that is, 20 days after the incident, the defendant Wu chose to take the express goods that he had previously owned to the public security bureau to surrender.
With regard to defendant Wu's conduct, the public prosecution organ prosecuted Wu on suspicion of embezzlement, and the district people's court made a guilty verdict on the crime of embezzlement.
In addition, Wu took advantage of his position to illegally take possession of a relatively large amount of his unit's property, and Wu's conduct violated the provisions of the Criminal Law, and the crime of embezzlement in public office was established, and he should be given a criminal punishment.
and the charges charged by the public prosecution shall be supported.
However, defendant Wu X voluntarily surrendered after committing the crime and was able to truthfully confess his crime, which is an act of voluntary surrender, and all stolen goods have been returned, and a lighter punishment and a suspended sentence may be applied in accordance with law and as appropriate.
However, even so, Wu's illegal possession of his express goods is already illegal.
In the end, Wu was convicted of embezzlement by the Shanghai Huangpu District People's Court and sentenced to two years in prison with a two-year probation.
Explain the law with cases
In fact, the crime of embezzlement in public office is a criminal offense, not an illegal act that violates the administration of public security, and should be given a criminal punishment rather than a public security punishment.
The sentencing standards for the crime of embezzlement in public office are as follows:
(1) where the amount is relatively large, a sentence of up to three years imprisonment or short-term detention is to be given, and a concurrent fine;
(2) where the amount involved is huge, a sentence of between three and ten years imprisonment and a concurrent fine is to be given;
(3) where the amount is especially huge, the sentence is 10 or more years imprisonment or life imprisonment and a concurrent fine.
As the perpetrator, Wu XX must have taken advantage of his position to embezzle the property of his unit, and the amount was relatively large.
"Embezzlement" refers to the fact that the personnel of a company, enterprise or other unit take advantage of their position to embezzle, steal, defraud, or illegally take possession of the property of the unit by other means, such as the manager of the company transferring the property income that should be the unit to a personal account or giving it to others without permission.
Accountants do not record the company's income and keep it for themselves. "Taking advantage of one's position" mainly refers to the perpetrator taking advantage of the facilitation created by the position he holds in the unit to illegally take possession of the unit's property.
It can be said that it was a subjective cognitive act for Wu to take possession of the items as his own when he knew that they were thousands of yuan, so although Wu returned the items 20 days after the incident, the crime was already a fact.
In fact, Wu, as a courier of an express company, did not have the right to choose or decide to handle the unit's goods, let alone have the responsibility to keep the goods. Therefore, the courier's contact with the goods is only a job requirement of his position, and he does not exercise any actual control.
It is a fact that Wu used his "position" to illegally transfer and conceal the goods by taking advantage of his "position" that he had access to the goods.
Although the crime of embezzlement in public office is derived from the "crime of corruption", in fact, it is not only to protect the interests of the unit, but also to supplement the crimes omitted and negligent consideration in the specific provisions of the crime of corruption.
In accordance with the provisions of paragraph 2 of Article 91 of the Criminal Law of the People's Republic of China, private property managed, used, or transported by state organs, state-owned companies, enterprises, collective enterprises, and people's organizations shall be treated as public property in accordance with law.
In addition, the legal interests protected by the crime of embezzlement are the ownership of the unit's property and the trust interests between the unit and the employees. The property in management, use, and transportation is under the possession of the unit, and the employees of the unit are only the assistant persons in possession.
Employees of the unit shall transfer or temporarily control the management of the property in management, use and transportation in accordance with their job duties, and when the property is damaged or lost, whether it is an accident or intentional, it is still the unit that suffers the loss.
Therefore, if the property in management, use, and transportation is listed as the property of the unit, if there is illegal possession of the property of the unit, it is an infringement of the interests of the unit.
Therefore, it is still key to clarify the ownership of the express goods. It is also necessary to have a positive certainty of the courier's illegal possession of the delivery goods.
At the same time, it is necessary to distinguish between the evidence of the crime of embezzlement in public office and the evidence of theft, and the object of the crime of embezzlement in public office specifically refers to the fact that the object of the crime of theft of property in the unit is the public or private property of others, that is to say, the evidence of the crime of theft is more extensive.
However, judging from Wu's case, it has become a fact of infringement to occupy the items of the owner of the goods who belong to the staff of the unit and take them for himself, which is also because the courier, as a staff member of the express delivery company, is a special subject, even if he satisfies the general subject defense.
However, it can be determined that whether it is the crime of embezzlement or theft, although it is different, the crime is the fact, just like Wu, even if the items are returned 20 days after the crime, his behavior has already constituted the standard of crime.
Naturally, whether it is for the unit or the staff of the unit, it is necessary to standardize the system and strengthen the creed of work standards, so as to avoid the occurrence of duty infringement laws and regulations for express personnel, and avoid the emergence of all illegal and criminal facts, so as to build a good business environment, protect the owner of the goods, and protect the reputation of the unit.