挪用公款罪转化为贪污罪的条件

1997年刑法修改前,司法解释将挪用公款不退还的情形规定以贪污论处,在当时被理论界批评为客观归罪,有悖定罪的主、客观相统一原则。1998年司法解释将挪用公款后客观上有能力退还主观上不想退还的情形排除在挪用公款罪之外,转而以贪污论处,是以不退还、拒绝退还等客观结果推定贪污目的的存在,仍然是一种客观归罪。能够证明挪用公款主观目的向贪污公款主观目的转化的事实,不是非法占有公款的客观结果,而是非法占有公款的行为和过程。

The Conditions for the Transformation from Appropriation to Corruption

Before criminal law was revised in 1997, the judicial explanation would stipulate and punish the situation of appropriating public funds for personal use not returned as corruption. The theory circle criticized it as objective imputation at that time, because it went against the principle of declaring guilty subjectively and objectively. In 1998, the judicial explanation excluded the situation that those had the ability to return the public funds objectively but not wanted to return it subjectively, from the crime of appropriating public funds for personal use, but criminated it as corruption. This is still a means of objective imputation because the existence of corruption purpose is deduced from the objective results of not returning or refusing to return, etc. Whereas, the fact, which can prove the transformation of the subjective purpose from that in appropriating public funds for personal use to that in corrupting the public money, is not the objective result in occupying the public funds illegally, but the illegal behavior and course.