According to our country criminal law the 271st regulation, company, company is other perhaps the personnel of the unit, exploit the advantage of officially, this unit property illegal possess oneself of, number is larger, be in 5 years of the following set term of imprisonments or arrest battle; Amount is huge, be in set term of imprisonment of 5 years of above, can be in confiscate property. "Functionary embezzlement " guilty main body is company, enterprise the staff member of other perhaps unit.
In " functionary embezzlement blame " regular meeting of the classics in the case sees " blame business is in charge of high or be not this unit employee " " case alien " view, so, in jural " case alien " this how qualitative? Xin of county of factory of Beijing University of author union river sincere flesh kind food limited company " functionary embezzlement case " in the much name that involve " case alien " in jural qualitative will try specific and analytic. What say here " case alien " those who point to is the experience case staff that did not share directly.
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Basic details of a case
Heibei saves big plant county is strong county of countrywide food industry, here has company of food of about a hundred Islamic, xin of county of factory of river Beijing University sincere flesh kind food limited company is place's well-known food company. The Wang Shouyan of Xin sincere company is place has know a spent female entrepreneur higher, glad of Zhao of Qin of snow of company treasurer bridge, cashier holds the position of financial officer early or late, liu Baoguo holds the position of a factory director. Liu Baoguo comes to a factory by its elder brother Introduction Liu Baowang, liu Baowang and Shou Yan of legal entity king are very familiar. The company moves old since, financial accounts all the time by administer of Qin of accountant bridge snow, and its " the car that buy a person of extraordinary powers " , the suspicion that the thing of buy house property aroused Wang Shouyan. Then, wang Shouyan found appraisal audit orgnaization to have audit.
Langfang city reachs center of appraisal of letter judicatory accountant after to Xin the finance affairs of sincere company has appraisal audit, issued number to be [2017] word of ancient bronze mirror the 004th " appraisal opinion book " . " appraisal opinion book " made appraisal conclusion is: The company capital of Xin sincere company flows to the personal account of 17 people for many times, come from 2013 2017 5 years add up to turn piece sixty-three million two hundred and sixty-seven thousand multivariate.
Via checking, use a post for a long time as the factory director that the business manages high and accountant, company public fund with loan, return the Zhang, name that supports Zhang to turn into personal account, use at the individual to be managed external, put usurious, return him individual liabilities, involve a company beyond tall canal and enterprise much person, the incident of personal account rose to outflow of whole industry capital gradually surface.
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Law reviews analyse
Be aimed at this matter, the author thinks, if the circumstance of report of Xin sincere company is belonged to solid, so this case is accorded with " functionary embezzlement " feature. " criminal law of People's Republic of China " the 271st qualitative punishment that commits a crime to be suspected of a post is having specific legal provision, at the same time top people procuratorate, the Ministry of Public Security about public security mechanism administer criminal case put on record is chased after accuse the standard sets, functionary embezzlement case is company, enterprise the personnel of other perhaps unit, exploit the advantage of officially, this unit property illegal possess oneself of, number comes in 5000 yuan of 10 thousand yuan of above, put on record chases after Yingyu appeal to. Xin sincere company is in charge of Liu Baoguo, Liang Xueqin, Zhao Xin high to use a post flow to company capital the individual or oneself relative is used, although with " loan " delimit company capital turn, with " remand " the form returns public money come back, but all the time will " loan " with " reimbursement " balance part is as high as hundred thousands of yuan, millions yuan have for a long time, had become embezzlement from divert, basis " book of judicatory appraisal opinion " the case of bank account circulating fund that announce, this case accords with functionary embezzlement make important document.
The biggest characteristic of this case depends on, the business was in charge of those who use a post high to flow to company capital " case alien " 17 people, so " case alien " did not participate in directly commit the crime, some still is the relative that the business is in charge of high, in jural this how qualitative? The author thinks, basis " how does top people court hold collective guilt about hearing case of embezzlement of corruption, post the explanation of a few problems " the 2nd regulation, behavior person and company, company is other perhaps the personnel collude of the unit, use company, company the post of staff of other perhaps unit is convenience, collective this unit property illegal possess oneself of, number is larger, with functionary embezzlement blame accomplice punish. Accordingly, the behavior of 17 people accords with alien of proposal of Xin sincere company likewise of functionary embezzlement blame make important document.
Our country criminal law is maintained to what principal and subordinate makes, the position in committing a crime jointly with its and action will try to distinguish, this is a general and applicable principle, functionary embezzlement crime is not exceptional also, also ought to applicable this principle will maintain. Specific and character, in the collective crime of functionary embezzlement, its principal and subordinate makes maintain not with the identity have without, the discretion of position will distinguish, depend on however the place that its have in place of whole crime process and action, if go to rising to this crime for the person active, drive and dominant action, although its do not have relevant identity and position,also ought to be maintained to be prime culprit.
(author department Beijing amounts to attorney office newly senior partner)
Proofread: Gong Zheng
Esteem De Shangfa
Rouse for law economy with breathe out! ! !
