How to distinguish between "convenience of office" and "convenience of work" in the crime of embezzlement?

Research Institution: Collaborative Innovation Center for Theoretical Research on Socialism with Chinese Characteristics in Beijing Universities (Beijing University of Technology)

Source: People's Justice

Summary of the trial

The essence of taking advantage of one's position in the crime of embezzlement in public office is that the perpetrator is able to take possession of and dispose of the unit's property based on his or her job duties. If the perpetrator only "possesses" the unit's property for a short period of time, or if the property is only "passed" from his hands, and he does not have the right to possess or dispose of the property in his hands, and the illegal possession of the property still needs to be achieved by means such as secret theft, it should be found that the perpetrator is taking advantage of the convenience of work, that is, taking advantage of the convenience or conditions formed by the work relationship to steal the property, and this situation is theft, not embezzlement.

Basic facts of the case

Public prosecution organ: People's Procuratorate of Nanhai District, Foshan City, Guangdong Province.

Defendants: Liu Wenhui and Liu Qihua.

The Nanhai District People's Court of Foshan City ascertained through trial that at about 10 o'clock on August 27, 2018, defendants Liu Wenhui and Liu Qihua went to Daicheng Electronic Technology Co., Ltd. (hereinafter referred to as Daicheng Company) in Lishui Town, Nanhai District for an interview, and were later arranged to engage in wave soldering operations in the workshop. At about 14 o'clock on the same day, after Liu Wenhui and Liu Qihua discussed, Liu Wenhui scooped out the liquid tin in the tin furnace in the company's workshop and cooled it into tin blocks, and the two successively hid two tin pieces in their waists and stole them out of the company. Later, Liu Wenhui returned to the workshop and hid a piece of tin in his waist and walked out of the workshop, the company's management and victim Wang Ruijia found something abnormal, so he followed Liu Wenhui to the sidewalk in front of the Xiangjuyuan Steamed Vegetable Restaurant near the company. After discovering the tin on Liu Wenhui's body, Wang Ruijia grabbed Liu Wenhui and called the person in charge of the company, and Liu Wenhui called to inform Liu Qihua to come. After Liu Qihua arrived, in order to resist arrest, he and Liu Wenhui beat and scratched Wang Ruijia with their fists and feet. It was determined that Wang Ruijia suffered a soft tissue injury to his neck caused by blunt force, which was a minor injury. On September 4 of the same year, the police arrested the defendants Liu Wenhui and Liu Qihua, and seized two pieces of tin from the scene of the arrest. After identification, the value of the above three pieces of tin was 1835.44 yuan.

Adjudication Results

After trial, the Nanhai District People's Court held that the defendants Liu Wenhui and Liu Qihua secretly stole public and private property in a gang for the purpose of illegal possession, and used violence on the spot to resist arrest, and their acts constituted the crime of robbery. The facts and charges charged by the public prosecution were established. The second defendant caused minor injuries to the victim and was given a heavier punishment as appropriate. Liu Qihua voluntarily pleaded guilty in court and was given a lighter punishment as appropriate. In accordance with the provisions of Articles 263, 269, 52 and 53 of the Criminal Law, the Nanhai District Court rendered a judgment on July 11, 2019: (1) the defendant Liu Wenhui committed the crime of robbery and was sentenced to 3 years and 4 months imprisonment and a fine of 3,000 yuan, and (2) the defendant Liu Qihua committed the crime of robbery and was sentenced to 3 years and 2 months imprisonment and a fine of 3,000 yuan.

After the first-instance verdict was announced, Liu Wenhui appealed. His defender submitted that the original verdict was erroneous, and requested the court of second instance to declare him not guilty. The reason is that Liu Wenhui and Liu Qihua, as employees of Dai Cheng Company, came into contact with tin blocks during wave soldering operations, which is due to their official acts of handling the unit's property and has temporary actual control over the property, which meets the characteristics of the criminal conduct of the crime of embezzlement in public office, so it should be characterized as embezzlement in public office. However, the value of the property embezzled by the two was only 1,835.44 yuan, which did not meet the standard for filing a case for the crime of embezzlement. Moreover, the act of embezzlement in public office does not meet the circumstances of transformational robbery as provided for in article 269 of the Criminal Law, and this case can only be handled as not guilty.

After trial, the Foshan Intermediate People's Court held that the use of one's position in the crime of embezzlement refers to the convenience of taking advantage of one's own work or business to lawfully possess, control, manage, or dispose of the unit's property, and does not include the convenient conditions such as the familiar environment and easy access to the unit's property formed due to the work relationship. Liu Wenhui and Liu Qihua stole tin from Dai Cheng on August 27, 2018. At the time of the incident, Liu Wenhui and Liu Qihua, as the wave soldering operator of Daicheng Company, were familiar with the environment of Daicheng Company and had convenient conditions for contacting the stolen tin blocks, but Liu Wenhui and Liu Qihua's occupation of the tin blocks in their work belonged to the temporary possession in a specific enclosed space and a specific time and space, and were monitored by monitoring equipment, and there were management personnel patrolling and inspecting. Liu Wenhui and Liu Qihua also did not receive authorization from Daicheng to take the tin out of the production site. As a result, Dai Cheng did not lose control of the tin blocks in the company's production premises. Liu Wenhui and Liu Qihua's act of secretly stealing tin blocks and taking them out of the company under such circumstances is an act of theft, not an act of embezzlement. After the theft was discovered, Liu Wenhui and Liu Qihua resisted arrest and beat the victim Wang Ruijia on the spot, causing him minor injuries, and their conduct met the elements of the crime of transformative robbery as provided for in article 269 of the Criminal Law, and shall be found to be the crime of robbery. Therefore, the grounds of appeal and defense opinions of appellant Liu Wenhui and his defender were insufficient and were not accepted. On August 26, 2019, the Foshan Intermediate People's Court ruled to reject the appeal and uphold the original judgment in accordance with Article 226, Paragraph 1 (1) of the Criminal Procedure Law.

Case Analysis

The focus of the dispute during the trial of this case was that the defendants Liu Wenhui and Liu Qihua, as workshop operators, took the tin blocks they handled away from the company and took them for themselves whether they were theft or embezzlement? If it was theft, then the two defendants' use of violence on the spot to resist arrest was converted into the crime of robbery in accordance with the provisions of Article 269 of the Criminal Law; otherwise, if it was embezzlement in public office, the provisions of the crime of transformative robbery did not apply, and because the amount involved did not meet the criteria for conviction, it did not constitute the crime of embezzlement in public office.

The key to distinguishing whether the defendant's act is theft or embezzlement lies in whether the defendant took advantage of his job or his position to commit the act of embezzlement. Those who take advantage of their work to steal the property of their own unit shall be punished as theft, but those who use their position to facilitate the theft of their own unit's property shall not be deemed to be theft, and shall generally be characterized as embezzlement by public office.

1. The concept of judicial recognition of disputes and their resolution and the concept of work convenience was first found in Article 10 of the Decision of the Standing Committee of the National People's Congress on Punishing Crimes in Violation of the Company Law in 1995. This article stipulates: "A director, supervisor or employee of a company who takes advantage of his position or work convenience to embezzle the company's property shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention if the amount is relatively large, and shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property." This is also the prototype of the crime of embezzlement. This provision explicitly uses the concept of "convenience at work" in the description of the offence and stipulates it together with "convenience at work".

However, when the Criminal Law was amended in 1997, the expression "convenience at work" was not continued to be used, and only the expression "convenience at work" was left. This is also an important reason why academics generally exclude the act of taking advantage of the convenience of work to illegally take possession of the property of their own unit from the crime of embezzlement in public office.

What is a convenience at work? Criminal law scholars generally believe that it refers to a convenience that is not directly related to authority or duty or is not based on duty, such as being familiar with the environment in which the crime is committed simply because they work in a certain unit, easily entering the place where others keep public property by virtue of their status as a staff member, being relatively close to the target of the crime, or being familiar with the operating procedures of other personnel in the unit because of their work relationship. Since these facilities are not directly related to, or based on, a particular authority or function, they do not fall under the category of taking advantage of one's position.

This general view is generally not problematic when applied to typical cases, but it is easy to cause controversy in cases of self-theft within the enterprise. In cases of self-theft by guards similar to this case, the perpetrator often directly handles or keeps the property of the unit based on the special conditions of his position, and if the convenience of work is defined as a convenience that is not directly related to his authority or duties or is not based on his duties, then the convenience used by the actor of self-theft by the guardian will easily be excluded from the convenience of work and be found to be a convenience of position.

In the case of Yang's embezzlement, which has aroused widespread concern in society, this is the way the court ruled it. In this case, the defendant Yang was an employee of Sichuan S.F. Express Co., Ltd. and worked on the sorting line. At about 3 o'clock in the morning of a certain day, in the process of sorting express packages, Yang used large objects to hide small objects to avoid scanning, and stole a Xiaomi mobile phone on the conveyor belt for his own use. After identification, the stolen mobile phone was worth 1,999 yuan. The procuratorate prosecuted the theft, and the court of first instance found the theft and imposed a fine of 3,000 yuan. The procuratorate protested on the grounds that the original sentence was unusually light. The court of second instance held that the defendant's conduct was embezzlement of duty, and he acquitted him because the amount did not meet the criterion for conviction. The procuratorate continued to protest, holding that this case was an abuse of work to facilitate the theft of property from the unit, and that theft should be determined. The court held in the retrial that the defendant Yang of the original trial, as a staff member of the express delivery company, was responsible for the sorting of express parcels under the arrangement of the company, and specifically handled the property involved in the case, and that he took advantage of his position in handling the property of the unit to use theft methods to embezzle the property of the unit, and his conduct should be in the nature of embezzlement of duty, and because the value of the property embezzled did not reach the threshold for conviction of the crime of embezzlement in public office, it should not be punished as a crime in accordance with law, so it ruled to reject the protest and uphold the second-instance judgment. [1] The final and retrial judgments of the case have been widely questioned by the theoretical community. [2]

As far as this case is concerned, the defendants Liu Wenhui and Liu Qihua did have access to and handle the property involved in the case due to the convenience of their positions, and their illegal possession of the property involved in the case cannot be said to have nothing to do with their powers or duties. Moreover, it is not easy to grasp under what circumstances an act of unlawful possession is directly related to a particular authority or duty, and under what circumstances it is not. Therefore, it is difficult to clearly delineate the boundary between the use of work convenience and the use of power and authority in terms of the relevance of financial misappropriation and authority or duties.

In addition, there is also a theoretical view that the position in the crime of embezzlement mainly refers to the management of affairs, and does not include simple labor work, and those who obtain property during the period of labor service only take advantage of the convenience of work rather than the convenience of their position. There is also a problem with this view. Regardless of the difficulty of distinguishing between affairs management and labor services, it is too simplistic and formalistic to exclude labor services from the job in general.

It is generally believed that the convenience of duty refers to the convenience of being in charge, managing, handling, and keeping the property of the unit, while labor work is not necessarily the handling and custody of the property of the unit. Therefore, the significance of first distinguishing between affairs management and labor services, and then demarcating the boundary between job convenience and work convenience, is also very limited.

The author believes that to effectively distinguish between job convenience and work convenience, it is necessary to change the way of thinking. First of all, self-theft by guards is an illegal crime of embezzlement of property, whether it is the convenience of work or the convenience of position, it is specifically directed at specific property. Therefore, we should pay attention to the relationship between the work convenience or position convenience owned by the actor and the specific property, which is also the key point for us to grasp the boundary between the two.

Second, since the use of one's position is a necessary objective element for the establishment of the crime of embezzlement in public office, the essence of one's position should first be determined, and then the circumstances under which the perpetrator took advantage of one's position and under what circumstances one took advantage of one's job should be determined based on the substantive attributes, so as to accurately determine the embezzlement or theft of one's position. II. The essence of the use of office facilitation is generally held that the convenience of office in the crime of embezzlement refers to the convenience of being in charge of, managing, or keeping or handling the property of the unit. The so-called supervisor or management is mainly embodied in decision-making, review, approval, allocation, arrangement, use, and handling of unit affairs. Being in charge of or managing property often means that the actor has the decisive right to purchase, disburse, or use the unit's property in his or her position, so taking advantage of the convenience of being in charge or managing the affairs of the unit is obviously taking advantage of the convenience of his position, and there is generally no doubt about this, and the main issue is the understanding of handling and safekeeping.

In cases of embezzlement of public office carried out by non-supervisors or managers, the convenience of the perpetrator's position is mainly reflected in the handling and custody of the unit's property. The so-called handling of property generally refers to the property of the unit that is received, transported, used, or disposed of as a result of performing duties. The so-called custody of property generally refers to the possession, preservation, or custody of the unit's property due to the relationship of duties. Considering the special nature and requirements of the act of duty, it is obvious that the handling and custody here is not a temporary possession of the property of the unit, or that the property is only passed through the hands of the actor, but requires that the actor should have the authority to possess and dispose of the property. Such possession and disposition authority may be owned by the actor independently, or it may be jointly owned by the actor and others, but the actor should have the right to control and dispose of the property in substance. If the property of the unit is in possession of the unit in a short period of time only because of the division of labor in the post, or if the property of the unit is only passed through the hands of the person and is immediately transferred to another person, it is obvious that the perpetrator is keeping and handling the property on behalf of the unit, otherwise it does not conform to people's common understanding of the position.

Therefore, the key to judging whether the perpetrator took advantage of his position is to see whether he has the duties and rights to possess, control, and dominate the property of the unit in which he or she illegally occupies it. If the actor's job duties include the authority to supervise, control, or dispose of the property handled or kept in the course of the labor, that is, there are no other obstacles to the actor's illegal possession of the property, it may be considered that he has taken advantage of his position.

If the perpetrator does not have the right to control or dispose of the property handled or kept in the course of labor, and he or she needs to take other means to evade supervision by illegally taking possession of the property, it should be regarded as taking advantage of the convenience of work. Some scholars take the electrician who installs wires outdoors as an example to interpret it, and believe that the electrician has the duty of custody of the wire materials he receives from being taken away by others, and also has the authority to independently control and dominate the wires. If he illegally appropriates the wire materials for himself, he is taking advantage of his position.

On the other hand, if the electrician takes advantage of the opportunity to lay wires on the construction site, instead of returning the remaining wires from the work to the material custodian as stipulated by the company, he hides some of the wires elsewhere and prepares to smuggle the wires out of the construction site and sell them to a recycling company for a profit when no one notices them at night. Because it is a construction site and usually does not have the independent right to dispose of the wires it handles, and illegal possession also requires the use of fraud and theft to evade supervision, so this situation cannot be found to be the use of the convenience of the position, but should be determined to be the use of the convenience of the work. [3]

It can be said that the above examples vividly illustrate what is job convenience and what is work convenience. 3. Based on the analysis and supplementation of this case, as far as the workshop worker is concerned, although in fact he is in possession of the unit's property, because the workshop still has a superior supervisor such as the workshop director, and he may be checked by security guards and guards when he walks out of the door of the unit, the property he has in his hands can only be auxiliary possession, but has no substantive right to dominate and control, and his illegal possession of property often requires the use of means such as secret theft or fabrication of facts, so it should be considered that he did not possess the property of the unit based on his position, and it does not belong to the embezzlement of his duties. In essence, this kind of property embezzlement is actually the use of job opportunities, that is, taking advantage of the convenience or conditions formed by the work relationship to get close to the property of the unit to steal property, so it should be characterized as theft.

In this case, the two defendants were wave soldering operators of Dai Shing Company at the material time, were familiar with the environment of the unit, and had convenient conditions for accessing the stolen tin blocks due to their work relationship, but the defendants, as workshop workers, only possessed the tin blocks for a short period of time and space in their work, and were monitored by the video equipment in the workshop, and were inspected by management personnel, and Dai Shing Company did not authorize the defendants to cool the liquid tin into tin blocks and take them away from the company. In other words, it was impossible for the defendant to take possession of and dispose of the tin involved in the case in accordance with his job duties or authority, and it could only be determined that the tin was stolen by secretly taking the tin out of the company under such circumstances.

It should be noted that the essence of taking advantage of one's position is defined as the actor's ability to possess and control the unit's property based on his or her job duties, and it should also be emphasized that the possession and control of property based on one's position convenience should be a direct possession or control, and that when the property is under another kind of monitoring and the act of indirectly achieving control and control over the property, it should still not be found to be taking advantage of one's position, but should be found to be taking advantage of one's work. For example, if the staff of the post office delivers letters and parcels, the letters and parcels must be under control and control, but for the items in the letters and parcels, because they are sealed on the outside, they are under another kind of supervision, and the postal personnel are not under direct control over the property in the letter parcels. If a postal worker opens the seal and steals the property in the mail for his own use, it is not a convenient use of his position. Only in this way can we explain why the second paragraph of Article 253 of the Criminal Law stipulates that postal workers who steal property by opening, concealing, or destroying mail without permission shall be punished in accordance with the crime of theft as provided for in Article 264 of the Criminal Law.　

Note: *This paper is the interim result of the project "Research on the Reform of the Supervision System in the Context of National Governance Modernization" of the Collaborative Innovation Center for Theoretical Research on Socialism with Chinese Characteristics in Beijing Universities (Beijing University of Technology).

[1] See Sichuan Provincial High People's Court (2015) Chuan Xing Ti Zi No. 2 Criminal Ruling.

[2] Zhou Guangquan, "Research on the Controversy of the Objective Elements of the Crime of Embezzlement", Politics and Law, No. 7, 2018.

[3] Yin Lin, "The Difference Between 'Taking Advantage of Position' and 'Taking Advantage of Work'", Politics and Law, No. 12, 2015. (Author's Affiliation: Beijing University of Technology, Beijing University of Technology)

Case No. First instance: (2019) Yue 0605 Xingchu No. 131 Second instance: (2019) Yue 06 Xingzhong No. 944

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