摘要：
It has been controversial for quite some time whether to define the illegal possession by staff members of companies, enterprises or other work units as job encroachment or theft.These two crimes are both categorized as property-related crime as their criminal purposes and subjective aspects are similar while they obviously differ in subjects, means and targets of crime.However, when staff members of companies, enterprises and other work units commit such crime, their subjects are special, means are complicated and targets are uniform, which makes their definition vague, so it is difficult to differentiate them.In my opinion, the key to define such property-related crime is to distinguish the position convenience from the work convenience.If the perpetrator takes advantage of his position convenience to illegally possess the property, this constitutes embezzlement.If the perpetrator takes advantage of his work convenience to illegally possess the property, this constitutes theft.Furthermore, staff members who commit property-related crime should be convicted according to the principle of aligning penalty with crime.%在公司、企业或其他单位中, 其内部人员非法占有本单位财物, 是认定职务侵占罪还是盗窃罪的争议由来已久, 两罪均属于侵财犯罪, 在犯罪目的、主观方面有着相似之处, 在犯罪主体、行为手段、犯罪对象方面也有着明显的界限.而公司、企业或其他单位内部人员实施上述犯罪行为时, 由于犯罪主体的特殊性、犯罪手段的复杂性、犯罪对象的一致性, 使得两罪的界限更加模糊, 两罪的区分更加困难.我们认为, 界定该类型侵财犯罪行为性质的关键在于区分职务便利与工作便利, 如果行为人利用了职务上的便利非法占有单位财物的构成职务侵占罪, 如果行为人利用了工作上的便利非法占有单位财物的则构成盗窃罪.同时, 对单位内部人员侵财犯罪的定罪量刑要遵循罚当其罪的原则.
