Lawyer Guo Junran: crime of misappropriating funds of the unit

2022-05-09 0 By

Defendant: PI, male,46 years old, the former department of a city giant bee vineyard manager, non-state staff.The defendant PI, as a collective enterprise manager of a city bee vineyard, was in urgent need of production, in August 25, 1990, in the name of bee vineyard, to a city trust investment company loan RMB 100,000 yuan, guaranteed by a city service company grain and oil firm.Before the loan, the manager of the grain and oil firm put forward, to skin from the loan to take out 50 thousand yuan to lend the firm used to repay millet money, a few days later that is returned, otherwise not for skin for loan guarantee.PI mou consider this loan is used for agricultural investment, cycle long, big risk, qualified and willing to guarantee the unit is difficult to find, they agreed to the requirements of the business.On August 28 of the same year, Jubee Vineyard directly repaid 50,000 yuan of millet money to relevant grain and oil firms in Xiamen in the form of draft.Skin mou and business mou agreed to pay interest time and procedures.Since then, grain and oil firm capital turnover, repayment can not be cashed, the skin actively pay.Before the first-instance court’s judgment after the case, the principal and interest of the money and the penalty interest have all been returned to a city trust and investment company.Question: What should be the objective content of crime constitution?The court decided that the defendant PI mou’s behavior has constituted the crime of embezzling the funds of the unit, should be punished with the crime of embezzling the funds of the unit.The objective aspect of criminal constitution refers to the objective and external manifestation of criminal activities.The objective factual characteristics of crime include endangering behavior, endangering result and the time, place and method of crime.Among them, the harmful behavior is the indispensable element of all crimes, the harmful result is the essential element of most crimes, the time, place and method of the crime is only the essential element of some crimes.Specifically, as an objective aspect of crime, people’s harmful behavior is carried out under the control of people’s consciousness and will, which is embodied in two types: act and omission.By act we mean a positive act that is to perform an act prohibited by law;Omission refers to negative behavior, that is, not to carry out the behavior that should be carried out according to law.In the sense of criminal law, the harmful result refers to the harm caused by the harmful behavior to the object, namely the socialist social relationship, and specifically divided into two types of material harmful result and immaterial harmful result.In addition, the causal relationship between the harmful behavior and the harmful result is also an important objective aspect of the crime, finding out the causal relationship between the harmful behavior and the harmful result can provide an objective basis for investigating the criminal responsibility.In combination with the basic principle of objective aspect of crime constitution, find out the skin a behavior is in accordance with the appropriate funds sin for this unit, is the key to the objective aspect of China’s “criminal law” the 272th regulation: “companies, enterprises or other units of staff, by taking advantage of his office, misappropriate the funds for personal use or lending to others, the amount is larger, more thanThree months did not return, or no more than three months, but the amount is larger, for profit-making activities, or “ACTS of illegal activities, constitute appropriate funds sin for this unit, it must meet the requirements of the following four: first, the object of infringement is the ownership of public property, specifically for the use of this unit, but also to a certain extent, violated the financial management system.Secondly, the doer carried out the convenience on the position in objective respect and appropriated the behavior of this unit’s funds.Third, the subject of this crime is a special subject, that is, it must be the staff of the company, enterprise or other units.Fourth, in the subjective aspect from direct intention.The defendant PI is a manager of giant bee Vineyard, the implementation of the use of the position of convenience, the appropriation of the unit’s funds to lend to others, a large amount of profit activities.Its behavior completely conforms to the object, objective aspect, subject and subjective aspect of the appropriation of the unit’s funds.So, should regard it as embezzle this unit capital crime.Therefore, the judgment of the people’s court is correct.