以案明纪释法丨吸收客户资金不入帐罪与转化型贪污辨析

Core Viewpoint - The case involves the misappropriation of customer funds by a bank official, leading to a debate on whether the actions constitute the crime of embezzlement, misappropriation of public funds, or the crime of accepting customer funds without proper accounting [1][3][4]. Summary by Sections Basic Case Facts - Liu, a deputy branch manager of a state-owned commercial bank, and his wife, the actual controller of a private company, misappropriated over 10 million yuan from customers by falsely claiming high-interest deposit opportunities [2]. - Liu did not deposit the funds into the bank's official accounts but used them for his wife's company's operations, leading to a financial crisis and inability to repay the funds [2]. Divergent Opinions - Three opinions exist regarding Liu's actions: 1. Some argue he committed the crime of accepting customer funds without proper accounting due to the significant amount involved [3]. 2. Others believe he committed misappropriation of public funds since he intended to use the funds for business operations and misled customers into thinking their money was safely deposited [3]. 3. The third opinion asserts that Liu's actions constitute embezzlement, as he intended to illegally possess the funds after failing to repay them [4]. Analysis of Opinions - The analysis supports the view that Liu's actions should be classified as embezzlement, focusing on the nature of the funds, the intent to illegally possess them, and the transformation of intent from misappropriation to embezzlement [5][10][14]. - The funds involved are considered public funds, as they were not deposited into the bank's official accounts, despite customers believing they were [8][9]. Judgment of Intent - The determination of Liu's intent is crucial, as embezzlement requires a clear intention to illegally possess public funds, which is evident in Liu's actions of destroying deposit certificates and fleeing [10][12][13]. - Liu's behavior reflects a shift from initially misappropriating funds for business purposes to a clear intent to permanently deprive customers of their money [13][14]. Conclusion - Based on the principles of subjective and objective consistency, Liu's actions should be treated as embezzlement, as they represent a complete criminal act involving the misappropriation and subsequent illegal possession of public funds [14].