087 Trespass

The crime of embezzlement refers to the act of illegally occupying property that has been entrusted for safekeeping, or property that has been forgotten or buried by others, and refusing to return it, when the amount involved is relatively large. This crime is a complaint-based offense. If the amount is relatively large and the property is not returned, a sentence of imprisonment for not more than 2 years, criminal detention, or a fine may be imposed; if the amount is huge or there are other serious circumstances, a sentence of imprisonment for more than 2 years but less than 5 years, along with a fine, may be imposed.

"Refusal to return" is merely a proof requirement for "occupying as one's own" and is not a substantive condition. It only indicates the objective existence of "occupying as one's own". Therefore, as long as the actor illegally occupies another person's property as their own, it can constitute infringement.

Misappropriation of Custodial Property
The crime of embezzlement can be divided into two types: one is the embezzlement of stored property, and the other is the embezzlement of detached property.

The act of embezzlement of custodial property refers to the behavior of taking possession of items that are held in custody. It is important to note the following points.

First, the distinction of packaging. It is generally believed that the person entrusted with the custody of the packaging does not simultaneously possess the property inside the packaging. If the packaging is opened and the property inside is taken for oneself, it constitutes theft.

For example, if Li Si asks Zhang San to help keep a box, Zhang San cannot open the box. As a result, out of curiosity, he opens the box and finds another locked box inside. Zhang San pries open the lock, only to find yet another locked box inside. He pries it open again, and inside there is yet another locked box. He pries it open once more, and finally, there is a snake inside that bites Zhang San to death. Curiosity killed the cat. In this case, if Zhang San takes the entire package for himself, it constitutes the crime of embezzlement; but if he takes the property inside the package for himself, it should be directly classified as theft, just like postal workers illegally opening someone else's packages would be charged with theft.

Secondly, the auxiliary possessor taking the property for themselves does not constitute embezzlement. An auxiliary possessor is someone who superficially controls the property but, in social perception, does not have the right to possess it. When the possessor hands over the property to the auxiliary possessor for "possession", in social perception, the property is not possessed by the auxiliary possessor. Therefore, the act of the auxiliary possessor taking the property as their own should be considered theft.

For example, when A gets off the train, he hires B to carry his bag, but B, while A is not paying attention, takes the belongings. In this case, although B assists in possessing the belongings, socially, they are still considered to be possessed by A; thus, it cannot be classified as embezzlement but should be punished as theft. A and B go out to have fun on B's motorcycle, but the road is bad. B suggests pushing it, but A insists on riding it himself, and then A rides off with the motorcycle. A is the auxiliary possessor and constitutes theft.

Deprivation of property
Abandonment includes forgotten items and buried items. In criminal law, forgotten items also include lost items. It is important to note that if an item is still considered to be held by others in social perception, it cannot be classified as a forgotten item; illegal possession of such an item cannot be considered encroachment. In other words, only items that fall into highly mobile areas are called forgotten items; if they fall into areas with low mobility, they actually belong to others.

For example, if A loses a wallet at a hotel, it seems to A that it is a forgotten item, but for the hotel, the item is considered to be in their possession without cause. Therefore, if someone steals this item, it constitutes theft; if someone deceives A into giving it away, it constitutes fraud, but it does not constitute the crime of misappropriation.

Buried property refers to property that is buried underground, of which the ownership is unclear or should belong to the state. If the property is intentionally buried by someone else in a certain location, or if it is presumed by social norms to belong to someone else, it falls under the category of property held by others and is not considered buried property.

For example, there are 3 gold bars hidden in the wall of A's house, but A is completely unaware of it. Later, when A hires B to install an air conditioner, B discovers the gold bars while drilling through the wall and secretly takes them. The property inside A's wall is considered to belong to A in social terms, so B's actions constitute theft.

One of the elements constituting the crime of embezzlement is a relatively large amount; however, judicial interpretations do not specify the standards for what constitutes a large amount. Some localities have established regulations, but these only hold a certain degree of authority locally. For example, the "Opinions on Standards for Handling Certain Criminal Cases in this City" issued by the Shanghai High Court, the Municipal Procuratorate, the Public Security Bureau, and the Justice Bureau in 2008 state that an embezzlement amount of over 20,000 yuan is the starting standard for "relatively large amounts." An embezzlement amount of over 200,000 yuan is the starting standard for "huge amounts."

Embezzlement
The crime of embezzlement refers to the act of a person taking advantage of their position to unlawfully occupy property of their unit, with a significant amount involved. Employees of companies, enterprises, or other units who take advantage of their position to unlawfully possess the property of their unit, with a significant amount, shall be sentenced to imprisonment for not more than 3 years or criminal detention, and shall be fined; if the amount is enormous, they shall be sentenced to imprisonment for more than 3 years but less than 10 years, and fined; if the amount is particularly enormous, they shall be sentenced to imprisonment for more than 10 years or life imprisonment, and fined.

The crime of embezzlement is currently widely applicable, and many people are arrested for this crime without even realizing that their actions constitute a crime. Many entrepreneurs believe that their business is their own money bag, confusing the boundary between personal property and company property, making it easy for them to end up in prison. According to judicial interpretations, amounts over 60,000 yuan can generally be recognized as a relatively large sum, thus constituting a crime. The "Criminal Law Amendment (11)" raised the maximum penalty for this crime to life imprisonment. The intention behind this is to equally protect public and private property rights. Remember the previous Deng Baoju case? According to the laws at that time, since he was not a state worker, regardless of how much property he embezzled from the unit, he could only be sentenced to a maximum of 15 years in prison. However, after March 1, 2021, this crime can be punishable by life imprisonment.

In a sense, the essence of the crime of embezzlement is to use one's position to commit theft, fraud, and appropriation, taking the company's finances for personal use.

Using one's position for personal gain refers to utilizing the convenience provided by one's role as a supervisor, handler, or responsible party for the management of an organization's assets to appropriate those assets for oneself. Position-related convenience typically involves having authority over the management of assets, such as factory directors, managers, accountants, cashiers, and custodians, and does not include conveniences from purely labor-related jobs. For example, if a postal courier takes a parcel from the conveyor belt that does not belong to their delivery area, opens that parcel, and takes the items inside, this constitutes theft rather than embezzlement.

The crime of embezzlement requires that the unit suffers a loss of property. If the unit does not incur any loss, this crime cannot be established. For example, if a bank employee discovers a credit card that someone else has not retrieved while inspecting an ATM machine, and then withdraws money from it, since the bank's property has not been harmed, it cannot be considered embezzlement. The only property affected is that of the depositors, which constitutes theft.

Think about it

After entering the subway car, A发现 a wallet (worth 30,000 yuan) next to his seat, so he asked B next to him: "Is this your wallet?" Although the wallet does not belong to B, B replied, "Yes, thank you!" A then handed the wallet to B. How should B's behavior be classified?