农村基层组织人员贪污与职务侵占行为之认定——以贵州省黔南布依族苗族自治州为例

当前,对农村基层组织人员涉嫌贪污与职务侵占犯罪的处罚往往较轻,有的只按违纪处理,仅收缴非法所得,惩治“村官”犯罪出现空白地带。同时,司法机关对相关罪名的认定存在分歧,刑法威慑受到约束,刑罚效果不甚理想。对此,统一和深化认识,严密法网、填补法律漏洞势在必行。在司法实践中,要准确把握相关司法解释和农村基层组织人员协助人民政府从事相关事务管理的内涵;对于以虚报数量等方式侵吞土地征用补偿费的,或在村集体未提留前侵吞以及在提留后侵吞应发放给村民的款项的,都应以贪污论处;只有侵吞村集体提留资金的情形,才可认定为职务侵占。

Identification of Embezzlement and Position Encroachment of the Rural rass roots Organization Personnels

At present, the punishment of rural grass-roots organization personnel suspected of corruption and occupation crime is usually relatively light, some of them are only treated as violation of discipline, only collect illegal income, and there is a blank area to punish "village officials" crime. At the same time, the judicial organs have different opinions on the determination of related charges, the deterrence of criminal law is constrained, and the penalty effect is not ideal. In this regard, it is imperative to unify and deepen the understanding, to close the legal network and to fill the legal loopholes. In judicial practice, it is necessary to accurately grasp the connotation of relevant judicial interpretation and the assistance of rural grassroots organizations to the people’s Government in the management of relevant affairs;for those who embezzle the compensation fees for land acquisition by means of false reporting, or those who embezzle the compensation fees before the village collective fails to withdraw them, or those who embezzle the funds that should be distributed to the villagers after withdrawing them, they should be punished as embezzlement;only those who embezzle the funds withdrawn by the village collective should be punished as embezzlement The situation can be identified as occupation.