People's Court Case Database - Judgment Views on the Crime of Embezzlement in Public Office

The following article comes from Houqi Criminal Defense, written by Li Shiwei

Based on the "crime of embezzlement in public office" as the cause of action, the author searched the cases entered into the first phase of the people's court's case database, and through summarizing and sorting out the cases, eliminated cases with duplicate views, and combined with the provisions of paragraph 1 of Article 271 of the Criminal Law, summarized the common disputes over the application of the crime of embezzlement in public office in practice into three points, namely: the identity of the staff, the convenience of taking advantage of one's position, and the scope of the unit's property.

1. Identity of the staff member

The subject of the crime of embezzlement in public office requires that the person being a staff member of a company, enterprise, or other unit, and to establish the crime of embezzlement in public office, it is first necessary to determine whether the perpetrator is a staff member of the unit. The adjudication view of the selected cases in the case database of the people's court holds that even if a formal labor contract has not been signed, but a de facto labor relationship is formed with the unit, it should be recognized as a staff member of the unit. Although the insurance agent is nominally a entrusted agent, in essence it is no different from the work content of the staff of the insurance company, and it has the identity of the subject of the embezzlement of duties. In the case of He Mousong's embezzlement (warehousing number: 2023-04-1-226-003), the court held that the defendant He Mousong, as an outsourced stevedore recruited by the Zhengzhou Station Business Department of China Railway Express Co., Ltd., did not sign a labor contract with the railway company in accordance with the law, but worked as a stevedore at the railway station for a long time, and there was a "de facto labor relationship" between the two, and should be recognized as a unit staff in accordance with the law. In the case of embezzlement by Xu Moudong and Zhu Mouhua (warehousing number: 2023-05-1-226-009), the effective judgment of the court held that the insurance agent can be regarded as a staff member of the insurance company. The co-case parties Xu Mouyang, Zhang, Gu Mouqing and others signed an insurance agency contract with the Shanghai branch of XX Life Insurance, accepted the training and management of the insurance company, and carried out business in the name of the insurance company, which in form seemed to be a principal-agent relationship with the insurance company. But in essence, the insurance agent in the name of the insurance company for the insurance company agency business, the insurance company from the insurance business to obtain premium income, from which to pay the insurance agent to the commission, in order to ensure the quality of the insurance agent's work, the insurance company also for the insurance agent to organize training, arrange supervisors to implement strict management means, which is basically the same as the insurance company's staff work attributes. The difference between the two is only in the form in which the income is earned. The fundamental purpose of the insurance agency contract is that the employment cost of the insurance agent is relatively low, and there is no need to pay the basic salary and social security for the insurance agent. Therefore, the difference in the way of payment is not enough to distinguish the boundary between the insurance agent and the staff of the insurance company, and the insurance agent has the subject identity condition of the embezzlement.

2. Taking advantage of one's position

One of the conditions for the establishment of the crime of embezzlement in public office requires the staff of the unit to take advantage of their position, and theoretically a general view has been formed on the convenience of their position, that is, the convenience of taking advantage of the supervisor, management, and handling of the unit's property, and the selected cases in the people's court's case database have given specific adjudication views on what constitutes the use of position convenience. In the case of Nie XX's embezzlement of duties (warehousing number: 2024-03-1-226-001), the court held in an effective judgment that with regard to the defendant's and defender's opinion that Nie XX was the marketing director and was not in charge of the engineering department, which did not meet the constitutive elements of the crime of embezzlement in this case, after investigation, although Nie XX was not responsible for the engineering department on a daily basis, he was arranged by Huang XX, the legal representative of a certain spring company at the time, to be responsible for handling the renovation and renovation of the exterior wall of a hot pot restaurant in the town, which was temporarily authorized to manage work matters other than the daily duties of a certain position according to the work needs of the unit, and did not affect the determination that he had the convenience of his position。 "Convenience in position" in the crime of embezzlement in public office refers to the power to supervise, handle, or manage unit funds or client funds within the scope of one's authority, or as a result of the performance of one's duties. The scope of my authority includes not only the authority of his daily position, but also the authority temporarily granted by the person in charge of the unit according to the needs of the work, as long as it is the power to supervise, handle and manage the unit's funds arising from the performance of his duties, it can be determined to use the convenience of his position. In the case of embezzlement of Mr. Han's position (warehousing number: 2023-02-1-226-001), the effective judgment of the court held that when Mr. Han's nominal position is inconsistent with his actual position, his position should be determined based on the actual performance of his duties, that is, the delivery business of the unit he is responsible for. In the process of handling the car delivery business, Han went to the vehicle management personnel of the unit Yao to receive the car keys and the vehicle exit permit (Yao needs to sign on the exit permit) to submit the vehicle to the company, and Han has the authority to manage and handle the unit's vehicles within the scope of his duties. Although it is relatively easy to theoretically determine whether the perpetrator has taken advantage of his position, in practice, the right to manage and dispose of a unit's property is sometimes exercised by two or more people, which leads to the fact that in order to successfully and illegally take possession of the unit's property, the perpetrator needs to take advantage of not only the convenience of his own position, but also the convenience of other staff members. In the course of committing the crime, the perpetrator may carry out a variety of acts, sometimes taking advantage of his own position, sometimes taking advantage of his familiarity with the environment in which the crime was committed, and some of the conduct is not related to the convenience of his position, which brings a certain amount of controversy to the determination of the crime. In this case, from the perspective of causality in criminal law, the crime should be determined according to the extent to which the actor's official convenience played a role in the completion of the crime, and if the convenience of the official position played an indispensable role in the completion of the entire crime, his act constituted the crime of embezzlement. In the case of Zhang's embezzlement (warehousing number: 2023-05-1-226-008), the court held that Zhang, as the head of the company's warehousing department, has the responsibility to manage and handle the company's relevant warehouses and stored goods, and whether he has the power to sell and dispose of goods to the outside world is not contradictory to his authority to manage and handle goods, and even if he does not have the power to sell or dispose of goods externally, it does not affect the determination of the elements of taking advantage of his position, so Zhang's act of taking advantage of his position to steal the company's property meets the constitutive elements of the crime of embezzlement in public office and should be found to be the crime of embezzlement in accordance with law。 To sum up, to examine whether the employees of the unit have taken advantage of their positions, it is necessary to pay attention to the substantive examination rather than the formal examination, that is, it is necessary to judge not only the duties determined by the daily positions, but also the circumstances of temporary authorization, as long as the power of the supervisor, handling and management of the unit's funds arising from the performance of duties can be determined to take advantage of the convenience of the position, and whether or not they have the power to sell and dispose of goods externally does not affect the determination of the convenience of the position. It is worth noting that whether there is a criminal law causal relationship between the use of one's position to facilitate the misappropriation of the unit's property cannot be ignored, and if the convenience of one's position plays an indispensable role in the eventual success of the embezzlement of property, the establishment of a causal relationship must be established.

3. The scope of the unit's property

The crime of embezzlement requires that the staff of the unit embezzle the property of the unit, and in practice, there is often a judgment on the ownership of the property, which directly affects the characterization of the case. In the case of embezzlement by Guo and Wang (warehousing number: 2024-04-1-226-001), the effective judgment of the court held that taking advantage of one's position to withhold profits that originally belonged to private equity funds belonged to individuals was embezzlement of funds managed by private equity fund managers, and met the requirements of article 271 of the Criminal Law, and was punished as the crime of embezzlement in public office. In the case of Nie Moumou's embezzlement (warehousing number: 2024-03-1-226-001), the court held that the "funds of the unit" in the crime of embezzlement can be either the original funds of the unit or the customer funds that should be delivered to the unit. The receivables and benefits of the unit, although they have not yet entered the account of the unit or are actually controlled by the unit, still belong to the property of the unit. In the case of embezzlement by Wang X 1 (warehousing number: 2023-04-1-226-002), the court held that the behavior of a company's personnel taking advantage of their positions to facilitate the embezzlement of shareholders' equity usually does not constitute the crime of embezzlement, but if they use the equity they have embezzled to further embezzle the company's property, or embezzle the equity held or managed by the company, the crime of embezzlement can be established. In the case of embezzlement by Xiong and Lei (warehousing number: 2024-05-1-226-005), the effective judgment of the court held that the difference between the defendant's mark-up sales should belong to the company. The object of embezzlement is "the property of the unit", including the existing property of the unit and the determined income, and the "property of the unit" is not limited to property, but also includes property interests. The difference between the defendant's markup sales should belong to the company and be the property of the unit. Although it was forbidden for the employee to order hot pot sauce at a fictitious franchisee and sell it at a higher price, and the defendant was unaware of the fact that the defendant sold it to the owner of a treasure shop at a higher price, the whole process was in the name of the company and made use of the company's sales channels, resources, and the company's brand of hot pot sauce. The owner of a non-franchisee treasure shop specifically ordered hot pot base from an employee of Qin's company, which was essentially a sales contract relationship with Qin's company to purchase hot pot base, paid the price as agreed, and went to Qin's company's warehouse to pick up the goods after getting Qin's company's sales delivery order, so it had the appearance of believing that the goods were bought and sold with the company, and the buyer was also deemed to have traded with the company, and his transaction object was the company, not the defendant, and he had always thought that the increased sales were the company's behavior. The resulting income should not be the additional labor income of Xiong and Lei, but should belong to the company. In fact, the contract for the sale and purchase of hot pot base ingredients between a certain treasure store and Qin's company has also been fulfilled. Therefore, for the transaction between a treasure store and Qin's company based on the contract, all the payment should belong to Qin's company, and the price difference should be the legitimate interest of Qin's company. To sum up, the property managed by the unit on behalf of the unit belongs to the property of the unit, and the receivables and benefits of the unit are still the property of the unit even though they have not yet entered the account of the unit or are actually controlled by the unit. It is worth noting that in practice, it is not possible to adopt a "one-size-fits-all" judgment method for the situation of embezzlement of the difference after the increase in sales by the employees of the unit, and whether the amount can be identified as the property of the unit depends on whether the employees' channels, resources and brands of the unit are used in the sales process, so as to determine whether it is the additional labor income of the employees of the unit, and if it is not the labor income of the employees, the difference after the price increase shall be recognized as the property of the unit, and vice versa.

Transferred from the official account of Case Handling Daquan