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Embezzlement is an act of dishonestly withholding assets for the purpose of conversion (theft) of such assets, by one or more persons to whom the assets were entrusted, either to be held or to be used for specific purposes.〔(Definition of "embezzlement" from Legal Explanations )〕 Embezzlement is a type of financial fraud, e.g. a lawyer might embezzle funds from the trust accounts of his or her clients; a financial advisor might embezzle the funds of investors; and a husband or a wife might embezzle funds from a bank account jointly held with the spouse. Embezzlement usually is a premeditated crime performed methodically, with the embezzler taking precautions to conceal his or her activities of the criminal conversion of the property of another person, because the embezzlement is occurring without the knowledge or the consent of the affected person. Often it involves the trusted individual embezzling only a small proportion or fraction of the total of the funds or resources he/she receives or controls; in an attempt to minimize the risk of the detection of the misallocation of the funds or resources. When successful, embezzlements continue for years (or even decades) without detection. It is often only when a relatively large proportion of the funds are needed at one time; or they are called upon for another use; or, when a major institutional reorganization (the closing or moving of a plant or business office, or a merger/acquisition of a firm) requires the complete and independent accounting of all real and liquid assets; prior to, or concurrent with, the reorganization, that the victims realize the funds, savings, assets or other resources, are missing and that they have been duped by the embezzler. In the U.S., embezzlement is a statutory offense, thus the definition of the crime of embezzlement varies according to the given statute. Typically, the criminal elements of embezzlement are: (i) the fraudulent (ii) conversion (iii) of the property (iv) of another person (v) by the person who has lawful possession of the property.〔Singer and Lafond, Criminal Law, 4th ed. (Aspen 2007) p. 261.〕 (i) Fraudulence: The requirement that the conversion be fraudulent requires that the embezzler wilfully, and without claim of right or mistake, converted the entrusted property to his or her own use. (ii) Criminal conversion: Embezzlement is a crime against ownership; i.e. voiding the right of the owner to control the disposition and use of the property entrusted to the embezzler.〔Singer & LaFond, Criminal Law (Aspen 1987) p. 213.〕 The element of criminal conversion requires substantial interference with the property rights of the owner. (This is unlike larceny, wherein the slightest movement of the property, when accompanied by the intent to permanently deprive the owner of possession of the property is sufficient cause.)〔Singer & LaFond, Criminal Law (Aspen 1987) p. 213.〕 (iii) Property: Embezzlement statutes do not limit the scope of the crime to conversions of personal property. Statutes generally include conversion of tangible personal property, intangible personal property and choses in action. Real property is not typically included. (iv) of another: A person cannot embezzle his or her own property. (v) Lawful possession: The critical element is that the embezzler must have been in lawful possession of the property at the time of the fraudulent conversion, and not merely have custody of the property. If the thief had lawful possession of the property, the crime is embezzlement. If the thief merely had custody, the crime is larceny.〔inger & LaFond, Criminal Law (Aspen 1987) p. 261.〕 == Embezzlement versus larceny == Embezzlement differs from larceny in two ways. First, in embezzlement, an actual ''conversion'' must occur; second, the original taking must not be trespassory.〔Singer & LaFond, Criminal Law (Aspen 1997) at 213.〕 To say that the taking was not trespassory is to say that the person(s) performing the embezzlement had the right to possess, use, and/or access the assets in question, and that such person(s) subsequently secreted and converted the assets for an unintended and/or unsanctioned use. ''Conversion'' requires that the secretion interfere with the property, rather than just relocate it. As in larceny, the measure is not the gain to the embezzler, but the loss to the asset stakeholders. An example of ''conversion'' is when a person logs checks in a check register or transaction log as being used for one specific purpose and then explicitly uses the funds from the checking account for another and completely different purpose. It is important to make clear that embezzlement is not always a form of theft or an act of stealing, since those definitions specifically deal with taking something that does not belong to the perpetrator(s). Instead, embezzlement is, more generically, an act of deceitfully secreting assets by one or more persons that have been ''entrusted'' with such assets. The person(s) entrusted with such assets may or may not have an ownership stake in such assets. In the case where it is a form of theft, distinguishing between embezzlement and larceny can be tricky.〔In their book Criminal Law, Singer and LaFond provide an excellent analytical method for making these distinctions.Singer & LaFond, Criminal Law (Aspen 1997) at 221.〕 Making the distinction is particularly difficult when dealing with misappropriations of property by employees. To prove embezzlement, the state must show that the employee had possession of the goods "by virtue of his or her employment"; that is, that the employee had formally delegated authority to exercise substantial control over the goods. Typically, in determining whether the employee had sufficient control the courts will look at factors such as the job title, job description and the particular operational practices of the firm or organization. For example, the manager of a shoe department at a Department Store would likely have sufficient control over the store's inventory (as head of the shoe department) of shoes; that if he or she converted the goods to his or her own use he or she would be guilty of embezzlement. On the other hand, if the same employee were to steal cosmetics from the cosmetics department of the store, the crime would not be embezzlement but larceny. For a case that exemplifies the difficulty of distinguishing larceny and embezzlement see State v. Weaver, 359 N.C. 246; 607 S.E.2d 599 (2005). North Carolina appellate courts have compounded this confusion by misinterpreting a statute based on an act passed by Parliament in 1528. The North Carolina courts interpreted this statute as creating an offense called "larceny by employee"; an offense that was separate and distinct from common law larceny.〔N.C. Gen. Stat. § 14-74 provides in part: If any servant or other employee, to whom any money, goods or other chattels, . . . by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, ... with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or if any servant, being in the service of his master, without the assent of his master, shall embezzle such money, goods or other chattels, ... or otherwise convert the same to his own use, with like purpose to steal them, or to defraud his master thereof, the servant so offending shall be guilty of a felony . . .〕〔For cases interpreting the statute, See State v. Canipe, 64 N.C. App. 102, 103, 306 S.E.2d 548, 549 (1983); State v. Brown, 56 N.C. App. 228, 229, 287 S.E.2d 421, 423 (1982).〕 However, as Perkins notes, the purpose of the statute was not to create a new offense but was merely to confirm that the acts described in the statute met the elements of common law larceny.〔Perkins, Criminal Law 2d ed. (1986) at 286.〕 The statute served the purpose of the then North Carolina colony as an indentured servant and slave based political economy. It ensured that an indentured servant (or anyone bound to service of labor to a master, e.g., a slave), would owe to their master their labor; and, if they left their indentured service or bound labor unlawfully, the labor they produced, either for themselves (i.e., self-employed), or for anyone else, would be the converted goods that they unlawfully took, from the rightful owner, their master. Crucially (and this can be seen as the purpose of the statute), any subsequent employer of such an indentured servant or slave, who was in fact bound to service of labor to a pre-existing master, would be chargeable with misprision-of-a-felony (if it was proved in they knew that the employee was still indentured to a master, or owned as a slave); and chargeable as an accessory-after-the-fact, in the felony, with the servant or slave; in helping them, by employing them, in the unlawfully taking that which was lawfully bound (through the master servant relationship) in exclusive right, to the master of the indentured servant or slave. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「embezzlement」の詳細全文を読む スポンサード リンク
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