Embezzlement of someone else's property: how to prove and punishment

What is considered embezzlement of someone else's property?

The Criminal Code has article number 160, which provides punishment for misappropriation or embezzlement of someone else's property. These two concepts are often combined, but this is fundamentally wrong. Appropriation is usually understood as the use by a trustee of the property entrusted to him for personal purposes.

Embezzlement is considered to be the expenditure of entrusted property and material assets of the principal or transferring them to third parties without the permission of the owner of this property. The most common crimes under this article are considered to be embezzlement of a survivor's pension, contributions allocated to guardians, or funds received from maternity capital.

In both cases, in order to be charged under this article in court, it will be necessary to prove the malicious intent of the lawbreaker. Let us consider in detail the elements of the crime. It lies in the object of embezzlement if it corresponds to the object of theft, if we are talking about the appropriation of property. In this case, the subject of the crime can only be the property that was transferred to this person by the principal.

In this case, we will be talking about the property in respect of which the violator has acquired a certain kind of authority.

The reasons for this may be:

• civil contract, for example, for the provision of transportation, rental or storage services;
• work or labor relations;
• received special powers.

In the event that a person was not given the authority to own this property, if it was transferred under the protection or supervision of an absolutely random person, then this property will not be considered entrusted. In this case, the act will be qualified by another article, namely 158th.

Please note that in this way, the difference in the appropriation of property from its theft is that the attacker does not steal it from the owner, but obtains rights to it legally.

The elements of a crime providing for liability for misappropriation or embezzlement

The definition of embezzlement and misappropriation is contained in Art. 160 of the Criminal Code of the Russian Federation, according to which responsibility for these types of crimes is assigned. This is also a secret theft, but its object is necessarily the material assets entrusted to the thief.

Entrusted funds are funds that, due to official authority, contractual relations and other circumstances, are transferred to the future criminal by the owner of the property. The citizen is given certain powers to manage this money. He does not need to seize the property; it is already at his disposal, but it is not intended for personal use, but for a specific purpose. To commit a crime, it is enough to turn this property into your favor or transfer it to third parties.

The difference between theft and embezzlement

The distinction between theft and embezzlement is made precisely by the type of funds stolen. In the first case, these are other people's material assets, to which the thief has nothing to do. In case of appropriation, these funds are entrusted to him and transferred by their owner to perform certain specified functions.

The thief uses the stolen property for personal purposes. For example, a storekeeper watches a TV taken from a warehouse at home. If theft is discovered, it is possible to return the stolen property.

The difference between theft and embezzlement

Unlike misappropriated property, it is impossible to return wasted property. It is used up, sold or donated.

Except for this circumstance, embezzlement differs from theft in the same way as appropriation - the object of the theft. The stolen valuables were placed at the disposal of the criminal by the owner on the basis of certain contractual relations. In contrast to the material assets stolen during theft that do not directly belong to the thief.

Officials who are entrusted with funds may also commit theft. If the unlawful disposal of entrusted funds occurred during the performance of official duties, then this is misappropriation or embezzlement. If, for example, a storekeeper entered the warehouse late at night and took out the goods he liked, then he committed theft.

Note!

Misappropriation and embezzlement are punishable in accordance with Art. 160 of the Criminal Code of the Russian Federation.

Breach of trust

The Criminal Code of the Russian Federation contains another crime similar to theft, embezzlement and embezzlement. This is causing property damage through abuse of trust. Punishment for this act comes under Art. 165 of the Criminal Code of the Russian Federation. The point is also to cause damage to the property owner. At the same time, the limited right to dispose of this property, as in the article on misappropriation and embezzlement, is also transferred to the thief by the owner. However, this crime is fundamentally different from those given above.

An important point in determining liability under this particular article of the Criminal Code of the Russian Federation is the absence of signs of theft in the actions of the criminal.

Note!

Causing damage is a form of fraud. It is caused in the form of lost profits. Funds are not stolen from the fund belonging to the owner, but simply do not flow into it.

For example, such a crime occurs when a bus driver, having received money for travel from a passenger, does not then hand it over to the employer.

Criminal liability occurs only when major damage is achieved. Currently it is 250 thousand rubles. The maximum penalty is 2 years of imprisonment and a fine of up to 80 thousand rubles. If the act was committed by an organized group, or the damage was particularly large, over 1 million rubles, the maximum penalty is 5 years in prison and a fine of up to 80 thousand rubles. Citizens over 16 years of age are held accountable.

When to file charges of embezzlement

Waste of property is carried out in two ways.

1. Performing certain actions. For example, if a criminal uses property that was transferred to him for safekeeping or supervision.
2. Inaction. We are talking about the fact that the trusted person, through his inaction, led to the destruction of property or its loss, for example, as a result of a fire.

The corpus delicti under this article is material. Embezzlement is considered complete from the moment the property entrusted to the criminal is illegally taken.

The subject of this crime can be a citizen who has the following characteristics:

1. Reached the age of majority.
2. Is a financially responsible person.
3. An individual to whom the stolen property was transferred by the owner for temporary use or storage under an appropriate agreement.

In the event that not one person, but a group of people, participated in the embezzlement, then only those citizens who have the characteristics of social subjects will be recognized as perpetrators. They are liable under two articles: 33 and 160 as organizers, instigators or accomplices of this crime.

To charge under these articles, it is necessary to collect a good evidence base, which will be presented during the trial. Let's consider what can serve as evidence in a case of embezzlement of the principal's property.

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What are the initial investigative steps when investigating embezzlement or embezzlement of property?

When the perpetrators are caught red-handed

a personal search of detainees
is provided .
All documents in their possession are confiscated, including necessarily all documents related to the material assets being transported. An investigative inspection
of the seized documents, the place of detention and the vehicle, and the seized property is carried out When examining documents, the task of identifying signs of material or intellectual forgery is solved; When genuine and fictitious documents are discovered that are intended to cover up the fact of removal and transportation of property, they are compared by name, quantity and actual nature of the property. The inspection of the seized property compares it with the data in the discovered documents for it. The place of detention is inspected to check whether any documents or other incriminating objects were thrown away by the detainee. The vehicle may be equipped with hiding places for documents or valuables.

Interrogation of detainees

, in which it is clarified: the identity of the detainees, the nature of their participation in criminal activity; at whose direction or order the property was transported, how it was removed from the protected territory of the enterprise or organization; whether the conditions for unimpeded export included collusion with security guards, watchmen, bribery, their direct participation in the theft, who these persons were; where and to whom the exported property was intended, whether cash was expected to be received for it, for whom it was intended, etc.

are carried out at the place of work or residence of detained persons . The property of the suspects is seized

.

When a criminal case is initiated according to official data

Inspectors, auditors, participants in inventory commissions, and accounting employees are interrogated. The subject of the interrogation is the identified violations in the registration and conduct of transactions with property; information from received . explanations from financially responsible persons; facts of their detection of forgeries in documents, the preparation of fictitious documents; behavior of financially responsible persons during the audit and inventory.

When interrogating materially responsible persons

They find out the reasons for the formation of shortages or surpluses, the time of their formation, methods of camouflage, how, with what and when it was supposed to compensate for the shortage and use the surplus, etc. Next is done:

• seizure and inspection of documents (invoices, invoices, property write-off acts, etc.), identifying signs of forgery in them, identifying unusual places for their storage, deviations from the accepted registration procedure, etc.;
• attaching documents to the case - material evidence, attaching other documents of evidentiary value to the case;
• detention of suspects, their interrogations and searches of homes and workplaces;
• interrogations of persons who signed or endorsed documents seized in the case;
• seizure of property of suspects, carrying out operational search activities dictated by circumstances.

In a bank serving legal entities and individuals of interest to the investigation, agreements on settlement and cash services of the enterprise, payment orders, receipt and debit orders, advice notes, settlement checks and other documentation may be seized.

When initiating a criminal case based on the direct discretion of the investigative body

,
those. in fact, according to operational data, the following are being carried out:

• inspections and searches of office premises and homes of suspected persons, termination of access to places where property is stored, urgent inventory taking;
• seizure and inspection of documents, and, if necessary, termination of access to the premises where documents are stored;
• interrogation of suspects on the merits of the discovered documents, their contents, rough records, valuables, etc. discovered during searches, about their connections, possible accomplices, etc.;
• questioning of witnesses to transactions with property.

During a search, the tasks of detecting and seizing documents, as well as draft records indicating the presence of traces of misappropriation, objects of criminal encroachment, and criminally acquired values ​​are solved. Information about a crime committed can be stored on magnetic media for computers, on audio cassettes, in answering machines and voice recorders, etc. In the office premises, minutes of general meetings and correspondence of company officials, agreements, contracts, payment orders, check books, securities prospectuses and their registers, cash and balance sheets, and invoices may be found that are of interest to the investigation.

Evidence and investigation of misappropriation and embezzlement of other people's property

During the trial, first of all, it must be proven that the accused of embezzlement had malicious intent and pursued a selfish goal. Direct intent is entirely aimed at causing property damage to the victim. This is facilitated by the fulfillment and implementation of that selfish goal, which is aimed at using someone else’s property for personal purposes to obtain personal gain.

Qualification under the article in question, namely 160, is made only if there was a legally supported relationship between the principal and the person who received his property. There must be a document or agreement between two participants in this process. Otherwise, the case will be reclassified under another article – “Fraud”.

For a crime under Article 160, the culprit faces punishment in the form of a fine or actual imprisonment. It all depends on the damage that was caused to the injured party. Let's consider all types of liability for this offense.

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Reclassification of crime

The circumstances surrounding the commission of some crimes are clear from the beginning of their investigation. In other cases, it can be more difficult to distinguish between fraud and theft. Sometimes reasons may appear that lead to the reclassification of one crime into another:

1. The emergence of new information about a criminal act.
2. Changes in criminal legislation.
3. Identifying errors in determining the type of offense.

So, for example, a citizen entrusts an apartment to a friend for registration in Rosreestr. The criminal receives a power of attorney and appropriates the property. His actions are considered fraudulent. But the investigation reveals that the victim is an incompetent person and does not have the ability to adequately evaluate his actions. The criminal knew this, took advantage of the victim’s condition and persuaded the homeowner to sign the necessary documents. In such a situation, the crime will be reclassified from fraud to theft.

Requalification can be carried out at different stages of the criminal process:

• during an investigation;
• during the judicial hearing of the case.

Its results are enshrined in procedural documents. Changing the classification to a crime that entails a lesser punishment is often the goal of lawyers when defending a defendant.

Punishment for misappropriation and embezzlement

For the misappropriation or embezzlement of someone else’s property, the Criminal Code provides for the following penalties:

1. A fine, the amount of which can reach 120,000 rubles or the total income of the offender for a period of one year.
2. Mandatory work, the maximum amount of which can be 24 hours.
3. Six months of correctional labor.
4. Up to two years of forced labor.
5. Up to two years of restriction of freedom.
6. Imprisonment for up to two years.

If the crime was committed not by an individual, but by a group of people, then the punishment will be more severe:

1. A fine of up to 300,000 rubles or the total income of the convicted person for a period of two years.
2. Mandatory work for up to 360 hours.
3. A year of correctional labor.
4. Forced labor, the maximum period of which can be 5 years.
5. Restriction of freedom for up to one year.
6. Imprisonment for up to 5 years.

In case of theft of property on an especially large scale, the maximum term of imprisonment may be ten years, and the amount of the fine will increase to 1,000,000 rubles or the average income of the convicted person for a three-year period. Sometimes in practice there are situations of groundless accusations of theft of someone else's property, in such cases the help of a lawyer is necessary.

Main Differences

How is embezzlement different from fraud?

According to the said Resolution No. 51, in the case of fraud, a prerequisite is the presence of abuse of a person’s trust, which is expressed in a close relationship with the victim or an authorized person responsible for property and other valuables at the time of transfer. This may be the use of official position, family ties and friendly relations with the victim.

According to Art. 160 of the Criminal Code of the Russian Federation is qualified only in the case of a trust relationship that is legally established:

• lease contract;
• pledge of property;
• facility security, etc.

The difference between fraud and embezzlement is based on the relationship between the parties - legal and not. In simple words - there is no document, which means the article is reclassified, based on the characteristics and circumstances, into another crime provided for in Chapter. 21 of the Criminal Code of the Russian Federation.