The focus of the trial: corruption or misappropriation of public funds?

Hello, this involves clarifying the difference between corruption and misappropriation of public funds:

The difference between embezzlement and misappropriation of public funds: does it have the purpose of illegal possession?

According to judicial practice, the following situations can be used for identification:

(1) After misappropriating public funds, it is difficult to reflect the misappropriated public funds in the financial accounts of the company by means of false invoicing and destruction of relevant accounts, and there is no return behavior.

(2) absconding by misappropriating public funds.

(3) refusing to return the misappropriated public funds and concealing the whereabouts of the misappropriated public funds.

(4) The withheld unit income is not accounted for and illegally occupied, which makes it difficult to reflect the occupied public funds in the unit's financial accounts, and there is no return behavior.

The difference between the crime of corruption and the crime of misappropriation of public funds is mainly manifested in the following points:

First, they infringe on different objects. Although both crimes violate public property rights, the degree of infringement is different and the social harm is also different. The crime of corruption infringes on the right to possess, use, benefit and dispose of public property, while the crime of misappropriating public funds only infringes on the right to possess, use and benefit public funds.

Second, the subjective and intentional contents of the two are different. The subjective intention of the crime of corruption is to illegally occupy public property and not return it; The subjective intention of the crime of misappropriating public funds is to temporarily occupy and use public funds and intend to return them later. To judge whether misappropriation of public funds is transformed into corruption, we should judge and determine whether the actor subjectively has the purpose of illegal possession of public funds according to the principle of consistency between subject and object.

Third, they behave in different ways. The crime of corruption is objectively manifested in the use of corruption, theft, fraud and other methods to take public property for yourself. Because actors often destroy, alter or forge documents and accounts, it is difficult to find that public property is illegally embezzled in real life. The crime of misappropriating public funds is to decide to use the public funds of the unit without authorization. Although some deception means are sometimes adopted, generally, misappropriation, theft, fraud and other means are not adopted. In the case of misappropriation of public funds, the actor usually leaves traces on the account books, and even leaves loan vouchers. There is no settlement, so the fact of misappropriation of public funds can be found through auditing.

Corruption and misappropriation of public funds

The crime of misappropriating public funds and the crime of corruption are two crimes with different social harmfulness. These two kinds of crimes have violated the property rights of the criminal object, that is, the public to varying degrees. The crime of corruption infringes on the four rights of possession, use, income and disposal of public property, while the crime of embezzlement infringes only on the right of possession, use and income of public funds. Generally speaking, the boundary between the two is easy to draw, but in some special cases, such as intentional illegal possession of public funds, there may be qualitative confusion.

Theoretically, it is generally believed that the difference between the crime of corruption and the crime of misappropriating public funds is mainly manifested in the following aspects: First, their subjective and intentional contents are different. The subjective intention of the crime of corruption is to illegally occupy public property and not return it; The subjective intention of the crime of misappropriating public funds is to temporarily occupy and use public funds and intend to return them later.

Second, they behave in different ways. The crime of corruption is objectively manifested in the use of corruption, theft, fraud and other methods to take public property for yourself. Because actors often destroy, alter or forge documents and accounts, it is difficult to find that public property is illegally embezzled in real life. The crime of misappropriating public funds is to decide to use the public funds of the unit without authorization. Although some deception means are sometimes adopted, generally, misappropriation, theft, fraud and other means are not adopted. In the case of misappropriation of public funds, the actor usually leaves traces on the account books, even on the loan vouchers, and there is no settlement, so the fact of misappropriation of public funds can be found through auditing.

It is not difficult to see the difference between these two aspects, and the first aspect is particularly important. In other words, the key difference between the crime of corruption and the crime of misappropriating public funds lies in whether the actor subjectively has the intention and purpose of illegally occupying public funds. According to the Supplementary Provisions on Punishing Corruption and Bribery Crimes promulgated by the National People's Congress Standing Committee (NPCSC) 1988, those who misappropriate a large amount of public funds and fail to return them shall be punished as corruption. According to the relevant judicial interpretation, the "non-return" mentioned in the Supplementary Provisions includes both subjective unwillingness to return and objective inability to return. Judging from some cases encountered in practice, it seems that some people do lack repayment ability due to objective reasons after misappropriating public funds, but it cannot reflect the intention of misappropriation.

Therefore, the irrationality of this provision is obvious and has not been absorbed by the revised criminal law. After the implementation of the revised criminal law, to judge whether embezzlement of public funds has been transformed into corruption, we should judge and determine whether the actor has the subjective purpose of illegally occupying public funds according to the principle of consistency between subject and object.

According to Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds, anyone who absconds with misappropriated public funds shall be convicted and punished in accordance with the provisions of the Criminal Law on corruption. If the perpetrator absconds with all the embezzled public funds, it is deemed as the crime of corruption in full, and there is no dispute in practice. The difficulty of judicial determination lies in how to convict the perpetrator who absconded with part of public funds.

There are two different views on this. The first opinion is that the perpetrator absconded with part of the misappropriated public funds after misappropriating public funds, indicating that his intention and behavior of misappropriating public funds have changed. The behavior before and after absconding is consistent with the crime constitution of corruption, and the crime should be considered as a whole, and the amount of crime is the total amount misappropriated by the perpetrator. The second opinion is that if the actor absconds with some misappropriated public funds, he should be punished as corruption. As for how to identify the behavior of the perpetrator before absconding, it should be analyzed in detail.