The crime of duty embezzlement is a kind of multiple crime that violates the company law. It is an extension of the crime of duty embezzlement stipulated in Article 10 of the Decision on Punishing Crimes against Company Law adopted by the National People's Congress Standing Committee (NPCSC) 1995 on February 28th, and the crime of duty embezzlement is included in the criminal code. 1997, the first paragraph of Article 27 1 of the revised Criminal Law stipulates that: personnel of companies, enterprises or other units who take advantage of their positions illegally take the property of their own units for themselves, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.

The criminal law stipulates that the subject of the crime of duty embezzlement is limited to the personnel of companies, enterprises or other units. From the essence of legislation, as a duty crime, it is stipulated that its subject must have a specific identity and belong to a special subject according to the theory of criminal law. However, since the implementation of this law, there has been a great controversy in judicial practice about who can be the subject of the crime of duty embezzlement. The scope of the crime of embezzlement stipulated in Article 10 of the Decision on Punishing Crimes in Violation of the Company Law seems to be different from that stipulated in Article 27 1 of the Criminal Law, and its subject scope has been expanded, adding personnel from other units. However, judging from the provisions in Articles 2 and 5 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Taking Bribery, Corruption and Embezzlement in Violation of Company Law, which was issued on October 24th, 1996 10, the subject scope of the crime of embezzlement of public funds is the same as that of the crime of occupational embezzlement, and there is no new judicial interpretation on the subject composition of the crime of occupational embezzlement. The Supreme People's Court's explanation on handling bribery and corruption cases in violation of the company law, after several years of continuous research and judicial practice in academic and judicial circles, has basically formed a relatively consistent concept on the subject of the crime of duty embezzlement, which mainly includes the following categories: First, directors and supervisors of joint stock limited companies and limited liability companies are not allowed to have the status of national staff; Second, managers, department heads and other ordinary employees of the above-mentioned personnel other than directors and supervisors of the company shall not have the status of national staff; Third, employees of collective enterprises, private enterprises and wholly foreign-owned enterprises; Fourth, all employees of state-owned enterprises, companies, Sino-foreign joint ventures and Sino-foreign cooperative enterprises who do not have the status of national staff. Due to the complexity and particularity of the crime of duty embezzlement, the above four categories seem clear and complete, but they still cannot cover all the identities of the perpetrators of the crime of duty embezzlement.

Due to the transformation of the old and new systems of Chinese enterprises, the employment forms are diversified, the employment systems of some companies, enterprises or other units are not standardized, and the scope of employees is not clearly defined by the state administrative department and the labor department, resulting in a variety of titles for employees, including regular workers, long-term workers, regular workers, contract workers, dispatched workers, seasonal workers and temporary workers. Among these employees, labor contracts have been signed with companies, enterprises or other units. Establish labor relations, clarify the rights and obligations of both parties, and form an administrative subordinate relationship with companies, enterprises or other units. Of course, they have the subject qualification of the crime of duty embezzlement, which is one of the four categories of personnel summarized above.

Any law has its limitations and cannot cover everything. The legal provisions and judicial interpretation of the crime of duty embezzlement are the same, and it is impossible to completely stipulate the constituent elements of the crime of duty embezzlement. In addition to the above four different identities, there are a large number of temporary workers, dispatched workers, interns and part-time workers in companies, enterprises or other units. They are not officially in the organization, have not signed a labor contract with the enterprise, the labor relationship is unclear, and the rights and obligations of both parties are unclear. Whether these people can become the subject of the crime of duty embezzlement has become the focus of controversy in judicial practice. Some people think that the subject of the crime of duty embezzlement must sign employment contracts with companies, enterprises or other units, establish labor relations, and clarify the rights and obligations of both parties. Labor contract is an important contract, which must be concluded not only in written form, but also with statutory necessary clauses, otherwise it will not become the subject of the crime of job embezzlement. Some people think that as long as there is a factual labor relationship, it can constitute the subject of the crime of job embezzlement. The author wants to analyze and discuss the composition of the criminal subject of this part of the personnel respectively.

One is the qualification of temporary workers in companies, enterprises or other units. As the name implies, it is an informal employee employed by companies, enterprises and units. These employees are temporarily recruited from the society according to the actual needs of their work. Due to the reasons of the employer or the employee himself, the employer and the employee should sign a labor contract without signing a contract. Whether they can constitute the subject of the crime of duty embezzlement seems that the written labor contract has become the only basis for judging their identity. Then, when we define and identify the personnel of companies, enterprises or other units in judicial practice, should we judge whether they belong to companies, enterprises or other units by signing labor contracts and establishing labor relations according to law? With the implementation of the Labor Contract Law of People's Republic of China (PRC) on June 65438+ 10/2008, such disputes with contractual status will become less and less. Article 7 of the Law stipulates that the employing unit shall establish labor relations with laborers from the date of employment. The employing unit shall establish a roster of employees for future reference.

Article 10: To establish labor relations, a written labor contract shall be concluded.

If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.

Paragraph 3 of Article 14: If the employer fails to conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer has concluded an open-ended labor contract with the employee.

These legal provisions clearly stipulate that employers must sign labor contracts according to law. If a labor contract is not signed, the laborer shall accept the management of the employer and engage in the work designated by the employer, and receive labor remuneration and labor insurance.

Protection, the two sides actually fulfilled the rights and obligations stipulated in the labor law, that is, "factual labor relations", which became what some scholars called "personnel of quasi-companies, enterprises or other units". If an employee commits the act of "taking away the property of his own unit", we don't need to take whether there is a written labor contract as a necessary condition for "the personnel of a company, enterprise or other unit", but should study the objective aspects of his behavior. If there are objective factors,

Second, the subject qualification of part-time workers. In the realistic economic society, it is very common for a person to get paid part-time in one or more units, which makes it difficult for us to define whether he is a company, an enterprise or other units. Then, does a part-time job in a company, enterprise or other unit have the personnel qualification of the unit? To analyze things in essence, we should look at the specific situation, analyze them concretely and treat them concretely. The situation of part-time employees is different. Some people in different departments of the same unit, such as the staff of the administrative department, work part-time in the product sales of the unit (the business of the sales department); There are people outside the unit engaged in the business work of the unit, such as the personnel of unit A selling products or soliciting business for unit B; There are social workers who sell products or solicit business. How should their main properties be defined?

1. If the employees of the same unit work part-time in their own enterprises, the author thinks that the employees of this unit work part-time in their own enterprises, and their responsibilities must be stipulated by their units or regulations, entrusted or authorized by their units to complete the work stipulated by their units. The subordinate relationship between part-time employees and their managers has not changed, and the identity of part-time employees is still their own employees, although the work is not within their responsibilities. It may also be temporary and specific, because it is entrusted or authorized by the unit, which leads to the result that the actor obtains a specific position. The actor takes advantage of his position to illegally possess the property of his unit, which can be regarded as the subject qualification of the crime of occupational embezzlement.

2. The subject qualification of part-time workers outside the unit, some people think that it is a pure labor relationship with the unit, and the civil relationship between the parties is because of the provision of labor services, and the party providing labor services is paid. There is no subordinate relationship between administrative management and being managed, and they have no authority to take charge of, manage and handle the property of the unit. The two sides are completely equal civil legal subjects, and the legal disputes arising should be adjusted by civil law, and cannot be the subject of the crime of duty embezzlement. From the formal level, the part-time job of people outside the unit undoubtedly does not belong to the unit staff. The author believes that to judge the nature of things, we must study its essence and judge whether a person is a "unit staff member", not by his apparent identity, but by whether he is the undertaker of unit responsibilities or business activities. The main purpose or significance of the existence of a unit is not to give citizens their respective social roles or identities, but to organize and allocate certain social responsibilities or business activities. From the legislative intent, the essence of the crime of duty embezzlement is "occupation" because of "duty". Only the identity facts related to certain job responsibilities have the value of being considered as the subject of crime. To judge whether a person is an employee of a company depends not only on whether his status is part-time or full-time, but also on whether his professional behavior is convenient to use his "position". The so-called "post-"modern Chinese dictionary published by the Commercial Press (version 1982) explains: "What you are required to do at work". Including undertaking the management responsibility of the unit and engaging in specific business activities. Some scholars have expounded the "duty" of the crime of duty embezzlement, which has two characteristics: "relative stability" and "relevance". If the actor is entrusted or authorized by the unit and actually performs the duties of the unit within a certain period of time, even if he is not a staff member of the unit, he has obtained a certain management identity, that is, the responsibility of taking charge, managing, operating and handling the property of the unit.

Regarding the identification of part-time workers, we can analyze whether they meet the qualifications of companies, enterprises or other units by obtaining work authorization and remuneration. For example, part-time employees obtain power of attorney and work (business) agreement from the unit, or exercise their rights on behalf of the unit according to the relevant responsibilities and regulations formulated by the unit, use the contract and official seal of the unit, and some also hold the work permit, letter of introduction and business card of the unit, and engage in a certain business for a long time, with business sharing as a reward. Even if they cause losses to the business unit due to their own fault in the process of performing their duties, the legal consequences will no longer be borne by their individuals, but by their part-time units. At this time, their status changed from equal civil legal subjects to unit personnel, forming an administrative subordinate relationship with the unit. In fact, they accept the management and supervision of the unit, and their illegal possession of the property of the unit is caused by the duties entrusted by the unit, which is not essentially different from other formal employees and can constitute the subject qualification of the crime of job embezzlement.

Occasionally handling one or two businesses for the unit, illegally occupying the unit's property, or earning the price difference beyond the unit's product pricing, and failing to form an administrative subordinate relationship with the unit, can be regarded as a general labor relationship or business relationship, and should not be considered as a condition for the personnel of a company, enterprise or other unit.

Third, the main qualifications of dispatched workers and interns. Dispatchers and interns are not official employees of companies, enterprises or other units. Dispatchers are the staff of their dispatching companies, and interns are the staff of schools or subordinate units. From the analysis of the subject qualification of the crime of duty embezzlement, the identity of the two is similar, and the identification of the subject qualification is a difficult problem at present. Take dispatch workers as an example: dispatch workers are labor dispatch workers, and labor dispatch is also called labor dispatch, labor lease or employee lease. The labor dispatch unit dispatches workers to the employing unit according to the needs of the employing unit.

The dispatching company signs a labor dispatch (lease) agreement with the employing unit, and the dispatching company signs a labor contract with the employing unit. Therefore, the relationship between the dispatching company and the employing unit is a labor contract, the relationship between the dispatching company and the employing unit is a labor relationship, and the relationship between the employing unit and the employing unit is only the paid use of labor (labor remuneration).

Because the labor law stipulates that there is no subordinate working relationship between workers and employers, the situation of separation between employers and employers has formed. The labor dispatch personnel are not employees of the employer, and the employer is not the employer of the labor dispatch personnel. However, dispatchers actually undertake the same tasks as regular employees of employers. They take advantage of the convenience of supervisors, managers, operators and handlers to illegally occupy the property of their employers. According to the current law, they can't be regarded as the subject of the crime of job embezzlement because they are not employers. From the analysis of the criminal object, the object infringed by the dispatched workers does not conform to the object of the crime of duty embezzlement, and the property it occupies is not the property of its own unit, but the property of its work unit. As a result, the employees of one party working in the same company and the labor dispatchers of the other party have the same behavior of encroaching on the property of the unit, which has the same social harm. However, if qualitative treatment is required, the results are quite different. Employees of the company constitute the crime of duty embezzlement and should be punished, while dispatching workers constitutes unjust enrichment in civil affairs, which is regulated by civil law and violates the principle of equality in the application of law. It seems inappropriate to treat dispatching workers as theft. They take advantage of the convenience of legally holding the property of the unit when they are engaged in labor activities, instead of taking advantage of being familiar with the criminal environment and easy to get close to the property of the unit, illegally occupying the property of the employer and ignoring the particularity of their objective behavior. However, the Labor Contract Law clearly stipulates that the dispatched workers and the employing units are only labor relations, so the dispatched workers do not meet the subjective conditions of companies, enterprises or other units and the objective conditions of the crime of job embezzlement, and cannot be investigated for the crime of job embezzlement. According to the principle of legality in criminal law, analogy can no longer be applied. The author believes that this embarrassing situation that the same behavior has to bear different criminal legal responsibilities because of different identities should be changed as soon as possible. Not only can we divide the subject category in the sense of criminal law according to the provisions of the Labor Contract Law, but we can also expand the interpretation of the subject of companies, enterprises or other units according to the legislative intention of the crime of duty embezzlement. The identity of dispatched workers has met the qualification requirements of the crime of job embezzlement, which can be solved through legal interpretation.

Interns dispatched by schools or units should be equally applicable to the subject nature of dispatched workers. Those who sign internship contracts (agreements) with internship units can be regarded as contract workers, and those who have not signed contracts and worked in the units for a relatively long time can be regarded as unsigned, all of which meet the subject qualification of the crime of job embezzlement.