Understanding and Application of Article 271 of the Criminal Law "Illegal Occupy for Self"

Abstract: The judicial interpretation of "illegal possession" in Article 271 of the Criminal Law as including fraud, theft and other acts is unscientific, which can easily lead to a serious imbalance in the sentencing of the crime of embezzlement and ordinary theft and fraud, and also does not conform to the principle of legal protection, legislative tradition and international legislation. "Unlawful possession" should be interpreted as "unlawful possession of property occupied on the basis of one's position or business".

Keywords: illegal occupation for their own position embezzlement crime theft crime balance legal benefit protection principle.

Case Playback:

Defendant Zhang Wei is a motorcade driver of Anhui Blast Furnace Distillery. One day in November 2002, Zhang Wei drove to a bank in Xuzhou City to exchange a large amount of RMB for a small amount of RMB. He thought there was an opportunity to take advantage of it, so he premeditated with individual taxi driver defendant Huang Chaojun to steal his unit's cash and discuss the method of committing the crime when he went out to exchange RMB again, huang Chaojun was given a road map and the keys to the Santana car he was driving. On the morning of December 18, 2002, the defendant Zhang Wei called Huang Chaojun when he learned that the unit had sent him to Xuzhou to exchange money. At about 1: 00 noon on the same day, Zhang Wei arrived in Xuzhou with the escort of the factory and parked the Wan S30113 Santana car with 62.50000 yuan in cash in Shuian Apartment of Xuzhou Institute of Education and left. Huang Chaojun took advantage of the gap, opened the trunk with the car key Zhang Wei gave him in advance, stole 62.50000 yuan in cash and fled the scene. On December 25, 2002, the defendant Huang Chaojun surrendered to the Guoyang County Public Security Bureau with the stolen money of 618050 yuan.

As far as the case itself is concerned, the case is not complicated, the key is whether it is the crime of theft or the crime of embezzlement. On June 26, 2003, the court of first instance found Zhang Wei guilty of theft and sentenced him to life imprisonment, deprivation of political rights for life, and confiscation of all personal property. After the verdict was pronounced in the first instance, Zhang Wei believed that he should constitute the crime of embezzlement, so he refused to accept it and filed an appeal. The Higher People's Court of Jiangsu Province held that Zhang Wei, in order to illegally possess the above-mentioned public funds, took advantage of his actual control and custody of the public funds in this case, colluded with Huang Chaojun, a person outside the unit, and jointly took the secret possession of the public funds of the unit as his own, and his behavior characteristics were in line with the constitutive elements of the crime of embezzlement. In the end, the court of second instance sentenced Zhang Wei to 10 years in prison for the crime of embezzlement and confiscated 10000 yuan of property (Huang Chaojun was also sentenced to 5 years in prison for the crime of embezzlement).

From this case, we can see that the same is the damage to the property legal interests of the unit, and how great the difference in sentencing is! In judicial practice, such cases are not rare. Based on this, the author believes that it is of great significance to make a scientific and reasonable explanation and research on "illegal possession.

"Illegal possession" in Article 271 of 1. Criminal Law and its existing problems

"Illegal possession" in Article 271 of the (I) Criminal Law"

In Article 271 of the Criminal Law, "illegal possession", does its means include fraud, theft and other acts? According to the provisions of paragraph 2 of article 271 of the criminal law, if a state official has "the act in the preceding paragraph", he shall be convicted and punished in accordance with the corruption crime stipulated in articles 382 and 383, while the objective act of the corruption crime is "taking advantage of his position to embezzle, steal, defraud or illegally occupy public property by other means", which indicates the illegal possession stipulated in paragraph 1 of article 271 of the criminal law, it should also be an act of taking advantage of one's position to embezzle, steal, defraud or otherwise illegally occupy the property of the unit.[①]

In addition, Article 10 of the "Decision of the Standing Committee of the National People's Congress on Punishing Crimes of Violating the Company Law" stipulates that "Directors, supervisors, and employees of companies and other enterprises use their positions or work convenience to embezzle the property of the company or enterprise. If the amount is relatively large, it constitutes the crime of embezzlement." In response to this provision, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Bribery, Embezzlement, and Misappropriation in Violation of the Company Law" (Fafa [1995] No. 23), which interpreted the "embezzlement" as "It refers to the act of illegally occupying the property of the company or enterprise by embezzlement, theft, fraud or other means."

On June 30, 2000, the Supreme People's Court's "Interpretation on How to Identify Joint Crimes in the Trial of Corruption and Duty Embezzlement Cases" (hereinafter referred to as the "Interpretation") once again confirmed that the Supreme People's Court agrees with this interpretation. Article 3 of the interpretation stipulates that in companies, enterprises or other units, people who do not have the status of state functionaries collude with state functionaries to take advantage of their respective positions to illegally occupy their own property and convict them according to the criminal nature of the principal offender. If the principal offender is a state official, the crime of corruption should be convicted, then the means of the two persons should include all objective manifestations of the crime of corruption. Similarly, if the principal offender is a non-state official, then "illegally occupying the property of the unit as one's own" should also include the act of embezzling, stealing, defrauding or illegally occupying the property of the unit by other means. Because these two kinds of crimes are stipulated in the same provision, but the subject is different, the objective constituent elements are expressed the same, and the legal interpretation of their means and acts should be the same.

At present, the mainstream view of China's criminal law theory is also recognized to include fraud, theft and other acts.[②], I won't repeat it here.

(II) problems

Based on the above analysis, it can be seen that the existing relevant judicial interpretations and criminal law theory circles all recognize the objective constituent elements of the crime of embezzlement, including theft, fraud and other means of behavior. However, based on the principle of balance between crime and punishment, the author does not agree to interpret the objective constituent elements of the crime of embezzlement as including theft, fraud and other means, otherwise there will be a competition between the crime of embezzlement, theft and fraud, and in the case of competition, there will be an imbalance in sentencing.

Taking theft as an example, if the perpetrator steals a large amount of property secretly by taking advantage of his position for the purpose of illegal possession, how can he be convicted and sentenced? The following is an analysis based on different amounts.

1, the perpetrator took advantage of his position to secretly steal more than 100000 yuan of unit property

If according to different identities, the sentencing range will be quite different. If the crime of theft is imposed, according to the provisions of Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases on March 10, 1998, it belongs to "an extremely large amount". According to the provisions of Article 264 of the Criminal Law, it shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, as well as a fine or confiscation of property. According to the provisions of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery, Embezzlement, and Misappropriation in Violation of the Company Law (Fafa [1995] No. 23, hereinafter referred to as the 1995 Interpretation), embezzlement of company and enterprise property More than 100000 yuan belongs to "huge amount". Therefore, if it is a crime of embezzlement, it is a fixed-term imprisonment of more than 5 years and may be sentenced to confiscation of property. From the perspective of sentencing provisions, because the starting point of the former sentence is more than 10 years, the penalty includes life imprisonment, and additional punishment is necessary. For the latter, the starting point of the sentence is five years, excluding life imprisonment, and the additional sentence is optional. It can be seen from this that the punishment is heavier than the former.

2. The perpetrator secretly stole the property of the unit between 30000 yuan and 100000 yuan by taking advantage of his position.

According to the provisions of Article 3, paragraph 2, of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases on March 10, 1998, "If an individual steals public or private property worth 5000 yuan to 20000 yuan or more, the amount is huge." According to the provisions of Article 264 of the Criminal Law, he shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years and a fine. According to Article 75 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crime Cases on April 18, 2001, personnel of companies, enterprises or units who take advantage of their positions to illegally occupy their own property, and the amount is between 5000 yuan and 10000 yuan, shall be prosecuted. It can be seen from this that the Supreme People's Procuratorate and the Ministry of Public Security believe that 5000 yuan to 10000 yuan is a "large amount" for the crime of embezzlement"[3]. According to the provisions of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery, Embezzlement, and Misappropriation in Violation of the Company Law (Fafa [1995] No. 23, hereinafter referred to as the 1995 "Interpretation"), embezzlement of company and enterprise property 5000 yuan-Those above 20000 yuan belong to a relatively large amount and shall be sentenced to fixed-term imprisonment of not more than 5 years. According to Article 2 of the Notice of Jiangsu Higher People's Court and Jiangsu Provincial People's Procuratorate on Determining the Amount Standard of Criminal Offences such as Bribery, Embezzlement and Misappropriation in Violation of Company Law in Our Province (Su Gaofa [1996] No. 80), the embezzlement stipulated in Article 10 of the Decision shall be implemented with 10000 yuan as the starting point for a large amount and 100000 yuan as the starting point for a large amount. Therefore, those who take advantage of their positions to steal property from their own units between 30000 yuan and 100000 yuan will only be sentenced to fixed-term imprisonment of not more than five years or criminal detention if they are sentenced to the crime of embezzlement. From the perspective of sentencing, the former is sentenced to fixed-term imprisonment of not less than 3 years and not more than 10 years, and a fine, while the latter is only sentenced to fixed-term imprisonment or criminal detention of not more than 5 years, and the latter is obviously lighter than the former.

3, the perpetrator took advantage of his position, secretly steal the unit's property more than 2000 yuan less than 5000 yuan

According to Article 1 of the provisions of the Supreme people's Court, the Supreme people's Procuratorate and the Ministry of Public Security on March 26, 1998 on the determination of the amount of theft, that is, the theft of public and private property is "a large amount" and shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and if it is judged according to the amount standard of the crime of embezzlement, it cannot be prosecuted. According to Article 75 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crime Cases on April 18, 2001, personnel of companies, enterprises or units who take advantage of their positions to illegally occupy their own property, and the amount is between 5000 yuan and 10000 yuan, shall be prosecuted. According to Article 2 of the Notice of Jiangsu Higher People's Court and Jiangsu Provincial People's Procuratorate on Determining the Amount Standard of Criminal Offences such as Bribery, Embezzlement and Misappropriation in Violation of Company Law in Our Province (Su Gaofa [1996] No. 80), the embezzlement stipulated in Article 10 of the Decision shall be implemented with 10000 yuan as the starting point for a larger amount. The former is a crime, and the latter is not, how unfair punishment!

2. interpretation of "illegal possession" in article 271 of the criminal law is unscientific

According to the above analysis, for those who have a certain position and steal the property of the unit, their conviction and sentencing are lighter than those who do not have a certain position. The author believes that the current judicial interpretation of "illegal possession" in Article 271 of the Criminal Law is unscientific, because it does not conform to the principle of legal interest protection, does not conform to the legislative tradition, and does not conform to international legislative practice.

1. It does not conform to the principle of legal interest protection and violates the basic principle of crime adaptation. From the perspective of the interests protected by law, the crime of theft and the crime of embezzlement also infringe the ownership of public and private property. In terms of the damage to the ownership of public and private property, there is no difference between the two. Therefore, from the perspective of better protection of the interests of the law, the penalty for the crime of embezzlement should not be significantly lighter than the penalty for theft. This is because "officials or salesmen are different from ordinary people. They shoulder the trust of the state and business. Once they commit embezzlement, it will damage the image of state organs and cause a crisis of trust in the industry. It hinders economic exchanges and development between industries, makes social and economic life turbulent, and its social harmfulness is far wider than that of ordinary embezzlement, and the degree of harm is greater. Therefore, crimes committed by civil servants or employees shall be severely punished."[4]In addition, people with certain positions secretly steal the property of the unit. Because they are familiar with the working environment, stealing the property of the unit is more concealed, and it is more difficult to investigate and deal with it, and it is more necessary to increase the punishment. Therefore, if "illegal possession" is interpreted as including theft, fraud and other means, the punishment will naturally be heavier than the same crime without official status, not the other way around.

2, does not conform to the historical tradition of legislation. Judging from the history of our country's legislation, in the feudal society, although there is no crime of embezzlement today, it can be seen from the legislation of severe punishment for crimes committed by officials with certain positions that the punishment of the crime of embezzlement is obviously heavier than that of ordinary theft, and the crime of embezzlement in our country was convicted and sentenced according to the crime of embezzlement during the period of the founding of New China, it was only in 1997 that the criminal law separated the crime of embezzlement from the crime of embezzlement.[5]Just take the "Tang Law Shuyi" as an example. In Volume 19 (Thieves and Thieves) of the Tang Law Shuyi, it is written that "all the prison owners guard their own thieves and those who steal the property they are in custody, plus all the thieves, who are second-class, 30 horses are twisted."[6]The punishment for theft of officials with certain positions is heavier than that of ordinary people, that is, "plus second class", and those with an amount of 30 horses are sentenced to death, while ordinary people have no death penalty for theft regardless of the amount.[⑦]The criminal laws of the past dynasties have generally imposed more severe penalties than ordinary theft for the theft of officials who have a certain position by taking advantage of their power. Although the use of public power and the convenience of the position are not completely consistent, they have common similarities. Both are used to facilitate the implementation of the position, the harm is great. Therefore, it is against the legislative tradition to interpret the sentence of stealing property by taking advantage of one's position as heavier than the crime of theft without one's position.

3. From the perspective of foreign legislation, the sentence for the crime of embezzlement is not lighter than that of theft and fraud. For example, the Japanese Criminal Law stipulates that the crime of business embezzlement is sentenced to fixed-term imprisonment of not more than 10 years (Article 253 of the Japanese Criminal Law), and the punishment for theft and fraud is also less than 10 years (Articles 235 and 250 of the Japanese Criminal Law).

To sum up, the author believes that it is not appropriate to interpret the "illegal possession" in Article 271 of the Criminal Law as including theft, fraud and other acts. "When the interpretation conclusion made by the interpreter to the law does not conform to the concept of justice, do not attack the criminal law norms against the concept of justice, but should admit that their interpretation conclusion itself does not conform to the concept of justice."[8]

3. the author's understanding of "illegal possession" in article 271 of the criminal law.

In my opinion, it can only be narrowly interpreted as "the act of illegally taking possession of property based on position or business (including the act of making it owned by a third party)", that is, the destruction of the trust relationship of entrustment and the act of exceeding the authority of the entrusted property. On the one hand, the perpetrator is in legal or de facto possession of the property of others, and on the other hand, this possession is not based on a general principal relationship, but on the perpetrator's business.[⑨]The so-called possession is the state in which the object can be controlled in fact or in law, that is, the actor is in a state in law in which he can dispose of other people's property at will (the possibility of disposition), and it is important that there is a risk of abuse of the disposition.[Attending]

This narrow interpretation of the objective elements of the crime of occupation of office is of great significance.

First of all, it can solve the problem of serious imbalance between the crime of embezzlement and the crime of theft and fraud. Taking advantage of the convenience of the position, the act of stealing and defrauding the property of the unit is considered as the aggravating sentencing circumstances of theft and fraud, and the punishment is aggravated, so as to avoid the theft and fraud committed by using the identity of the position, which is lighter than that of the person without the identity of the position.

Secondly, it conforms to the logical order of legislation. Article 270 of the Criminal Law stipulates the general crime of embezzlement, including the embezzlement of entrusted property and the embezzlement of forgotten property and buried property. Article 271 stipulates that the personnel of companies, enterprises or other units illegally take possession of their own property. Logically, Article 271 should stipulate the crime of business embezzlement or the crime of job embezzlement. In fact, many foreign criminal legislation is to take the ordinary crime of embezzlement as the "preceding paragraph" or the crime of the preceding paragraph of the crime of occupational embezzlement. For example, the Japanese Criminal Law stipulates the ordinary crime of embezzlement in Article 252, paragraphs 1 and 2, that is, those who embezzle other people's property in their possession shall be sentenced to fixed-term imprisonment of not more than five years. A person who, although it is his own property, misappropriates the property under the order of an official organ to keep it, shall be dealt with in the same manner as in the preceding paragraph. Then, Article 253 stipulates the crime of business embezzlement, that is, whoever embezzles other people's property in his own possession in business shall be sentenced to fixed-term imprisonment of not more than 10 years. Similar legislation includes French criminal law, Italian criminal law, Swiss criminal law, etc. The interpretation of "illegal possession" in this legislative example is the same, that is, illegal possession of property owned by oneself based on some legal matter, rather than the general theory of criminal law in our country, "illegal possession" is interpreted as a variety of means including theft, fraud, embezzlement and so on.

In addition, the author believes that although the restrictive interpretation of "illegal occupation for oneself" can temporarily balance the uneven sentencing of the crime of embezzlement, theft and fraud, in the long run, it is still necessary to expand the sentencing range of the crime of embezzlement, so that there is no difference between the sentencing range and the crime of theft and fraud, because from the perspective of infringement of legal interests, there is not much difference between the two in essence, they are all infringements on property rights and interests, and based on the destruction of business trust or entrustment relationship, the former is more harmful and should be punished more severely. Otherwise, it is still impossible to fundamentally achieve the sentencing balance of theft, fraud and duty embezzlement.

This article won the third prize of Jinan lawyer's business paper selection in 2011

[①]Zhang Mingkai: Criminal Law, Law Press, 2007, p. 746. Also holding this view, Zhao Bingzhi: "Research on the Crime of Property Infringement", China Legal Publishing House, 1998 edition, p. 349; Zhang Xu and Yu Shizhong: "The Evolution, Comparison, and Reference of the Crime of Duty Embezzlement", published in "Modern Law", Issue 2, 2000.

[②]See Gao Mingquan and Markchang, editors-in-chief: "Criminal Law", Peking University Press, Higher Education Press, 2005, pp. 572-573; Liu Xianquan and Yang Xingpei: Monographs on Criminal Law, Peking University Press, 2007, p. 611; Miao Shengming and Li Jihua: Crime of Occupation

Research on Several Issues, People's Procuratorate, No. 11, 2002, p. 25, etc.

[3]The amount of prosecution for corruption is also 5000 yuan, which can be used as proof.

[4]Zhang Xu and Yu Shizhong, "The Evolution, Comparison, and Reference of the Crime of Duty Embezzlement", in Modern Law, No. 2, 2000, pp. 130-131.

[5]Liu Zhaogang: "Perfection of Legislation on the Crime of Duty Embezzlement", Hebei Law, No. 2, 2001, p. 81.

[6]Changsun Wuji: "Tang Lv Shuyi", Taipei Commercial Press, 1984 edition, p. 65.

[⑦]Shen Jiaben: "Criminal Law Examination of Past Dynas", Taipei Zhonghua Book Company, 1985, p. 1862.

[8]Zhang Mingkai: Principles of Interpretation of the Criminal Law, Renmin University of China Press, 2004, p. II.

[⑨]Zhang Mingkai: Outline of Foreign Criminal Law, Tsinghua University Press, 1999, No. 649.

[Attending][Japan] Otani: "Criminal Law", translated by Li Hong, Law Publishing House, 2003 edition, p. 213.