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.
Termination of the criminal case under Part 3 of Art. 160 of the Criminal Code of the Russian Federation
Gr. T.S.V. committed embezzlement, that is, theft of someone else's property entrusted to the perpetrator, committed by a person using his official position under the following circumstances.
Yes, gr. T.S.V. being (position) of the municipal educational institution "School" (transformed on November 29, 2011 into the public educational institution "School"), authorized to dispose of the property of the public educational institution "School", as well as to act without a power of attorney on behalf of the institution, to hire and fire employees, to issue local regulations , to give instructions mandatory for employees of the institution, approving the staffing table, being an official who constantly performs organizational, administrative and economic functions in a municipal institution, committed the theft of funds from the “School” budget by misappropriating them.
By the resolution of the chief state inspector "School" for fire supervision on the imposition of an administrative penalty dated October 20, 2011, T.S.V., as an official, was imposed an administrative penalty in the form of an administrative fine in the amount of <data taken> rubles for committing an administrative offense , provided for in Part 1 of Art. 20.4 of the Code of Administrative Offenses of the Russian Federation, that is, violation of fire safety requirements. On November 22, 2011, this fine was paid to T, S.V. at our own expense.
On November 23, 2011, while in the accounting department of the Municipal Educational Institution “School” T.S.V. for the purpose of illegal compensation for expenses incurred in connection with the payment of this administrative fine by appropriating funds from the “School” budget, acting deliberately, for selfish reasons, realizing the social danger of their actions, foreseeing the inevitability of socially dangerous consequences in the form of causing material damage to the “School” budget , and wishing for their occurrence, using their official powers, regulated by clause 7.10 of the charter and clauses. 3.23, 4.5 of the job description, allowing her to dispose of the property of the municipal educational institution "School", provided to the accounting department of the municipal educational institution "School" an advance report for the reimbursement of the specified <data taken> rubles paid by her to pay off the fine, after which she gave an oral order to those in her custody official dependence (position) MOU "School" Z.M.S. and (position) MOU “School” P.T.A.. to fill out an application for the allocation from the “School” budget of funds in the amount of <data taken> rubles for illegal compensation of expenses incurred in connection with the payment of a fine.
12/12/2011 T.S.V. from the money received from (position) P.T.A. deliberately, for selfish reasons, illegally turned to her advantage by misappropriating the funds entrusted to her in the amount of <data taken> rubles, disposing of them further at her own discretion, thereby causing material damage to the budget of the “School” in the amount of <data taken> seized > rubles.
By his deliberate criminal actions T.S.V. committed a crime under Part 3 of Art. 160 of the Criminal Code of the Russian Federation - misappropriation, that is, theft of someone else's property entrusted to the perpetrator, committed by a person using his official position.
Upon reviewing the materials of the criminal case, accused T.S.V. agreed with the accusation and on the basis of clause 2, part 5 of Art. 217 of the Code of Criminal Procedure of the Russian Federation petitioned for a verdict without a trial in the general manner. Such a petition was made after consultation and in agreement with her lawyer Zaporozhets V.M.
At the court hearing, defendant T.S.V. agreed with the charge, admitted guilt in committing the crime, supported the petition for a verdict without a trial. She explained that she was aware of the nature and consequences of the stated petition; it was submitted voluntarily, after consultations with the defense lawyer.
Defender - lawyer Zaporozhets V.M. supported her client in her petition to conduct the case in a special manner. In addition, she submitted petitions from a team of employees of the educational institution “School”. Department of Education on the minimum punishment. She filed a petition to change the category of the crime and terminate the criminal case.
Representative of the victim S.V.L. supported the petition <data taken> to dismiss the case, taking into account that the damage was compensated and the crime was committed for the first time.
Defendant T.S.V. supported the petition, expressed agreement to terminate the case due to active repentance.
The court applied a special procedure for making a judicial decision without holding a trial.
Considering the charge brought against T.S.V. the court finds that it is justified and confirmed by the totality of evidence collected in the criminal case. The actions of the defendant T.S.V. correctly qualified according to Art. 160 of the Criminal Code of the Russian Federation as misappropriation, that is, the theft of someone else’s property entrusted to the perpetrator, committed by a person using his official position.
Defendant T.S.V. committed a crime classified as a serious crime, has not been previously convicted, has a positive character, is not registered with a narcologist or psychiatrist, has not been brought to administrative or criminal liability, works. As a mitigating circumstance for the defendant's punishment, the court recognizes full admission of guilt and repentance for the crime, surrender, active assistance in solving and investigating the crime, and voluntary compensation for property damage.
No aggravating circumstances have been established.
Taking into account the positive characteristics, mitigating circumstances of the case, confession, assistance in solving and investigating a crime, compensation for damage caused, transfer from a school position to another job, the court considers that these circumstances are the basis for changing the category of gravity of the crime committed in accordance with part 6 art. 15 of the Criminal Code of the Russian Federation, from the category of a serious crime to a crime of medium gravity. The court takes into account the submitted petitions and personal characteristics, there is active repentance for the crime, the crime has ceased to be socially dangerous and, if there are grounds for Art. 75 of the Criminal Code of the Russian Federation, the court releases T.S.V. from criminal liability.
Taking into account the above and taking into account that there are no circumstances preventing the termination of the case, in accordance with Art. 25 of the Code of Criminal Procedure of the Russian Federation, the court finds an opportunity to dismiss the case against defendant T.S.V. in connection with active repentance.
Guided by Art. Art. 25, 254 Code of Criminal Procedure of the Russian Federation, court
pos t a n o v i l :
Terminate the criminal case against T.S.V., accused of committing a crime under Part 3 of Art. 160 of the Criminal Code of the Russian Federation, on the basis of Art. 25 Code of Criminal Procedure of the Russian Federation, Art. 75 of the Criminal Code of the Russian Federation in connection with active repentance.
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.
Qualifying composition
It is established in part two of the article under consideration. Among the qualifying features is the commission of an act by a group by prior conspiracy and causing significant damage to the owner of the property. In the first case, we are talking about two or more persons who agreed in advance to commit an act. The significance of the damage that arose after the unlawful actions of the perpetrators is evidenced by the importance of the consequences not only for the victim himself, but also for his close relatives. In this case, it is advisable to refer to the commentary to Art. 158 of the Code.
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.
Part four
The crimes provided for in parts 1-3 of the article in question, committed by members of an organized group or on an especially large scale, carry up to 10 years in prison. An additional fine of up to 1 million rubles may be imposed. or in the amount of income/salary for three years, as well as restriction of freedom for up to 2 years. The final sanctions are at the discretion of the court.
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.
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.
Specially qualified species
Article 160, Part 3 of the Criminal Code of the Russian Federation formulates the sign of the use of official position in the commission of a crime. Such subjects include officials who have the characteristics specified in paragraph 1 note. to Art. 285 of the Code. In addition, they should be understood as municipal or state employees who do not act as officials, and others who meet the requirements defined in clause 1 note. To Art. 201. Actions of accomplices, instigators, organizers of embezzlement or misappropriation, committed by the subject knowingly for them, using their status, are not qualified by norm 160, part 3 of the Criminal Code of the Russian Federation. In this case, the provisions of Art. 33 and 159 (part three). Embezzlement or misappropriation on a large scale is considered theft of property worth more than 250 thousand rubles.
