In business, there are situations when a company partner or chief accountant misappropriates funds or property entrusted to them. For example, a company leases a car, demands it back after some time, and the tenant does not intend to return someone else’s property. Or the accountant received a large sum for the report, but did not spend it on the company’s goals, but deposited the money into his own account. For these acts, the offender can be held accountable under Article 160 of the Criminal Code of the Russian Federation.
What is meant by misappropriation and embezzlement in the field of entrepreneurial activity?
Embezzlement and embezzlement are two different forms of theft. Let's look at their characteristics.
What is appropriation?
Misappropriation is understood as the unlawful use of property for one’s own benefit without the consent of the principal.
The act has the following characteristics:
- property is transferred into the possession of another person legally;
- the property does not belong to him;
- the owner wants to return his property, but the offender does not give it back;
- the accused uses the item for personal purposes.
What is embezzlement?
Embezzlement is understood as the illegal disposal by a person of someone else’s property entrusted to him by transferring it to third parties.
The signs of the act are as follows:
- a person, under his own responsibility, received someone else’s thing legally;
- the embezzler acted contrary to the intentions of the owner;
- the money has been spent;
- someone else's property is transferred to a third party.
Distinctive features of the composition under Article 160 of the Criminal Code of the Russian Federation
If an item is transferred under guard, but the guard does not have the authority to own the property, then the act does not fall under Article 160 of the Criminal Code of the Russian Federation. Therefore, it is important that the thing be entrusted to the accused legally.
The term “entrusted” means that any thing is transferred to the guilty person by virtue of:
- job responsibilities;
- official position;
- labor relations;
- civil contract.
The act is expressed in deliberate actions committed for selfish purposes.
To qualify a crime, it matters what damage is caused to the victim, which is calculated in:
- significant amount - amount from 5,000 rubles;
- large size - amount from 250,000 rubles;
- especially large amounts – amount from RUB 1,000,000.
If a criminal case has been initiated against you under Article 160 of the Criminal Code of the Russian Federation, we recommend that you find an experienced lawyer in a timely manner. He will help prove the absence of a crime and find mitigating circumstances.
The crime of theft
Theft is the gratuitous, unlawful appropriation of someone else's property in favor of the thief or third parties. This definition is given in Art. 158 of the Criminal Code of the Russian Federation. It's about theft—secret theft.
That is, it must occur in such a way that the owner does not know about it. Interestingly, if the owner of a property sees it being stolen, but the thief believes that he is acting secretly, this is also theft.
The crime is considered completed at the moment when the thief has the opportunity to dispose of the stolen property. The punishment in this case cannot exceed ¾ of the maximum established sanction under Art. 158 of the Criminal Code of the Russian Federation for a completed crime.
Note!
Persons over 14 years of age may be held liable. This is stated in Art. 20 of the Criminal Code of the Russian Federation.
An important thing in qualifying secret theft as theft is that in order to be able to dispose of property, the attacker must first seize it. This is what determines the main difference between theft and embezzlement.
Who is punished for misappropriation and embezzlement?
Punishment for the act under Art. 160 of the Criminal Code of the Russian Federation is imposed on an adult citizen. He must be a financially responsible person in relation to the entrusted property.
The following may appear in the dock:
- director of the firm;
- chief accountant or accountant;
- other persons due to official duties or contract.
If several persons are involved in a crime, citizens who have the status of organizers, instigators, and accomplices are recognized as perpetrators. The investigation must prove that the accused had direct intent to steal and committed the act for personal gain.
Main Difference
What are the differences between embezzlement, embezzlement and theft:
- The first fundamental difference between appropriation and embezzlement from theft is that there is no seizure of property as such: it is already in fact at the disposal of the culprit (transferred to him by the owner, but not for personal use).
- The second is that the subject of the act described in Article 160 can only be special (the person to whom the property is legally entrusted).
Any other persons without signs of a special subject who took part in the act will be considered not as perpetrators, but as accomplices, instigators or organizers. - The third is that in the case of theft, the thief takes possession of property that has nothing to do with him. In a situation of misappropriation or embezzlement, the perpetrator unlawfully disposes of someone else's property, which was entrusted to him by the owner.
What punishment is provided for embezzlement and embezzlement in business?
In the court verdict, sanctions under Article 160 of the Criminal Code of the Russian Federation are assigned depending on the severity of the act.
The following types of punishment are provided:
- a fine of up to 500,000 rubles;
- compulsory work lasting up to 360 hours;
- correctional labor for up to 12 months;
- forced labor for a period of up to 5 years;
- prison term of up to 6 years.
At the same time, sanctions are applied in the form of deprivation of the right to engage in their activities, work in a certain position, and restrictions on freedom.
To avoid criminal liability, you need to competently build relationships with the Economic Safety and Inspectorate and the Investigative Committee of the Russian Federation. An experienced lawyer will help you with this and will ensure the protection of your interests.
Definitions according to law
Reference . In the resolution of the Plenum of the Armed Forces of the Russian Federation “On judicial practice in cases of fraud, misappropriation and embezzlement,” there is a clear distinction between the characteristics of these actions.
The Supreme Court decided to consider the transfer of property entrusted to a person in his favor free of charge and for the purpose of obtaining benefits without the consent of the owner to be considered appropriation.
Embezzlement is considered to be actions in relation to entrusted values, the purpose of which was to extract benefits and which are expressed in their transfer to third parties, expenditure or consumption, without the consent of the owner.
In what cases is the accused released from liability for misappropriation and embezzlement?
If you have committed an offense for the first time, the court may exempt you from punishment. To do this, you need to prove that the crime has ceased to be dangerous to society.
In addition, sanctions are relaxed if:
- pregnancy has occurred;
- there is a young child;
- the accused turned himself in;
- the act was committed under the influence of difficult life circumstances.
A citizen is also released from liability if the statute of limitations has expired.
Signs of appropriation
The Plenum of the Armed Forces of the Russian Federation considers it completed if the following conditions were simultaneously met by the person to whom the property was entrusted by the owner. Signs of the act:
- Commitment by the accused of actions that ensure the non-return of entrusted property to its owner and contribute to its conversion to his own benefit.
- Transfer of material assets into the possession of the accused.
- The ability to dispose of property at will.
- The owner of the misappropriated valuables suffered material damage due to the inability to use and dispose of them.
Important . The main feature of misappropriation, which distinguishes it from embezzlement, is the transfer of property into the possession of another person in full and unchanged.
Legal advice on criminal penalties for misappropriation and embezzlement in business
If you have been charged under Article 160 of the Criminal Code of the Russian Federation, our lawyers will be able to effectively defend you. We are well acquainted with the nuances of operational investigations and investigative measures. Our goal is to prove the absence of a crime and mitigate sanctions as much as possible. Our lawyers have the experience and ability to protect your interests regardless of the complexity of the case. SCM is working closely with the investigation, finding reasons to close the case and reduce the severity of the punishment. Contact us for legal assistance, and we will advise you at a convenient time. Fill out the feedback form or call right now.
Examples of offenses under Article 160 of the Criminal Code of the Russian Federation
Now we will give examples of what actions can be equated to a crime under Article 160. Quite often, crimes relate specifically to the owner’s funds or resources, or affect other valuables, for example, equipment, building materials, etc.
- Misappropriation of entrusted funds. For example, when a cashier, taking advantage of his official position, appropriates a certain amount of money to himself.
- Write-off of materials for the needs of the enterprise or for work that was not performed. For example, an authorized person draws up documents according to which building materials were consumed, while the excess building materials were sold.
- Waste of corporate fuel by company drivers.
- Appropriation of the owner's equipment, possibly with replacement for less valuable equipment.
One important note! Appropriation must be distinguished from temporary borrowing. That is, the offender could have the intention of returning the embezzled property or, over time, replacing it with exactly the same thing. This violation will be regarded as arbitrariness or abuse of authority. For example, a full-time videographer borrows the owner’s equipment, does not inform him, but has the intention of returning it.
Differences between these acts and fraud using official position
If, in the case of embezzlement and embezzlement, the subject of the offense is at the disposal of the criminal before the commission of the crime by virtue of his official powers, then as a result of fraud using his official position, he receives into his possession property to which he previously did not have access.
In addition, an integral part of the crime is the fact that the fraud could not have been committed without the offender holding his position .
For example, if the manager of a building materials warehouse, who is a financially responsible person, arbitrarily transports sand from the employer’s warehouse to his personal plot and stores it there, then we are talking about appropriation.
If, under the same circumstances, the sand was sold to third parties, or was used up by the warehouse manager during construction, then waste occurs.
A situation in which the manager of a construction materials warehouse took an advance payment from a third party for the supply of sand belonging to the employer, but did not fulfill his obligation, could be considered fraud using his official position.
In all three examples, the key point is that the warehouse manager who manages the construction materials is directly responsible for their storage and safety. The same actions, but committed by loaders, would be considered theft. Read more about the differences between embezzlement, embezzlement and theft here.
Does one crime precede the other?
Many experts in the comments to Art.
160 of the Criminal Code of the Russian Federation indicate that embezzlement is the next stage following appropriation. However, in this case, one action with entrusted property would have two moments of committing a crime: first appropriation, then embezzlement. In practice, at the moment when the property is in the illegal possession of the culprit, his actions are qualified as misappropriation , but if it is established that he has spent material assets, then we are talking only about their waste.
Important! The facts of appropriation and embezzlement cannot be established simultaneously in relation to actions with the same property, and appropriation cannot precede embezzlement.
Types of fraud
Based on the type of messages, written and oral fraudulent deception are distinguished.
Actions are distinguished:
- falsification;
- cheating techniques in games;
- substitution of documents or monetary units;
- mobile deception;
- weighing and so on.
If we are talking about abuse, then in this case we are not talking about deception; the offender uses psychological techniques.
