Nowadays, in activities of many companies, there are some cases that the company assigns an employee to hold money, assets to perform obligations and works for the company but after the employee held money, assets, that employee failed to perform its duty and cut off contact with the company. With such situations, can the employee who appropriate company’s money be prosecuted for criminal liability? If so, what crime would the employee be prosecuted? When facing a similar situation, what should companies do to get their money back? TNTP has legal shares for companies as follows:
1. Can the employee who appropriate company’s money be prosecuted for criminal liability?
According to TNTP’s working experience, if an employee holds the company’s money and assets but fails to perform its obligations and works assigned to them and cuts off contact with the company to turn the company’s money, assets into their own money, assets, that employee will be prosecuted for criminal liability.
2. What crime would the employee who appropriates company’s money be prosecuted?
Currently, there are 02 viewpoints on criminal prosecution for the act of the employee who appropriates company’s money, which is: (i) Crime of abusing trust to appropriate property specified in Article 175 of the Penal Code 2015 (amended and supplemented in 2017) (PC); or (ii) Crime of embezzling property specified in Article 353 of the PC.
To consider the employee’s behavior, it is necessary to distinguish the difference between the Crime of embezzling property and the Crime of abusing trust to appropriate property.
- Accordingly, the subject of the Crime of embezzling property must be a person holding a position, authority in a State agency or organization or in a non-state enterprise or organization; the offender takes advantage of the position, authority to appropriate property that offender is responsible for managing.
- Meanwhile, the subject of the Crime of abusing trust to appropriate property only needs to reach the age of criminal responsibility according to the PC; the offender legally appropriates property through the form of a contract such as borrowing, borrowing or renting; after obtaining the property, the offender flees, does not return such property but uses deceitful tricks to appropriate such property, or on time to return the property but deliberately not return despite having conditions and ability; or has used the property for an illegal purpose, which leads to an inability to return the property.
Based on the legal signs of the above 02 Crimes, TNTP analyzes the situation as follows:
- The subject: Employee holding position and authority is working in non-state enterprise and organization.
- Employee is assigned to be responsible for managing money and assets by the company. Therefore, the employee has certain rights over the money and assets of the company.
- The employee has taken advantage of his/her authority (the right to hold money and assets of the company to perform the assigned work) to appropriate money and assets that employee is responsible for managing.
Compared with the above two crimes, the employee’s criminal behavior shows signs of The Crime of embezzling property specified in Article 353 of the PC.
3. Solutions for the company when detecting employee abusing the position and authority to appropriate company’s property
When an employee has enough behaviors outlined in this case, the best solution for the company is to denounce the crime. The offender will be prosecuted for criminal liability and still has to return the appropriated money of the company.
Denouncing a crime to an employee can be done by the following steps:
- Step 1: Identify the agency responsible for receiving denunciations, information on crimes, and petitions for prosecution.
- Step 2: Select the form and conduct denunciation, report crime and propose prosecution.
- Step 3: Monitor the result of denunciation settlement, crime reports, and prosecution recommendations.
Above are legal sharings when company situations which employee appropriates company’s property. We hope this article is useful for you.
Best regards.
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TNTP & Associates International Law Firm
Lawyer Nguyen Thanh Ha
Email: ha.nguyen@tntplaw.com
