Deputies to the peoples congress: proposing to unify the conviction and sentencing standards of the crime of embezzlement by taking advantage of duty

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 Deputies to the peoples congress: proposing to unify the conviction and sentencing standards of the crime of embezzlement by taking advantage of duty


The Suggestion pointed out that in recent years, private enterprises have frequently seen borers, especially occupancy cases, which seriously damaged the legitimate rights and interests of private enterprises. The current Criminal Law has no uniform standard for conviction and sentencing of corruption crimes committed by public officials and job embezzlement crimes committed by employees of private enterprises. The inequality of conviction and sentencing in the Criminal Law and the low cost of illegal crimes committed by employees of private enterprises lead to the frequent occurrence of duty crimes, which can not play an effective role in preventing and punishing crimes.

In the Recommendation, Xiong Jianming also gives two reasons for unifying the standard of conviction and sentencing for the crime of official embezzlement and corruption:

First, they are not equal in conviction. According to Article 11 of the Interpretation of the Supreme Peoples Court and the Supreme Peoples Procuratorate on Several Questions Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery, which came into effect on April 18, 2016, the crime of taking bribes by non-state functionaries as stipulated in Article 163 of the Criminal Law and the crime of taking bribes as stipulated in Article 271 of the Criminal Law should be satisfied. The starting point of the amount of `large amountand `huge amount in the crime shall be twice or five times as much as the corresponding amount standard of the crime of bribery and embezzlement stipulated in this interpretation. That is to say, the criterion of large amount is that the minimum amount of 60,000 yuan can meet the criterion of filing a case. The minimum requirement for the crime of corruption is only 10,000 yuan. The inequality of conviction and the difference of filing standards contradict the principle of equal protection.

Second, in terms of sentencing, the two are not equal. Among them, the current Criminal Law 271 stipulates that if the amount is huge, the employee of a private enterprise shall be sentenced to fixed-term imprisonment of more than five years and may also be sentenced to confiscation of property. Article 383 of the current Criminal Law stipulates that if the amount of corruption is especially large or if there are other especially serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated property; if the amount is especially large and the interests of the state and the people suffer especially heavy losses, the offender shall be sentenced to life imprisonment or death, and the property shall be confiscated. That is to say, the maximum penalty for the crime of occupation by duty is fixed-term imprisonment of more than five years, while the maximum penalty for the crime of embezzlement can be life imprisonment or death penalty. The unequal sentencing reflects the unequal protection of public and private property.

For this reason, Xiong Jianming pointed out in the Recommendation that we should unify the conviction and sentencing standards of the crime of occupancy and embezzlement between employees and public officials in private enterprises, so as to realize the equal protection of public and private property in criminal law.