Misappropriation and Business Misappropriation are both important provisions in the Criminal Code aimed at protecting property rights. Their purpose is to prevent the unlawful appropriation of another person's property, thereby safeguarding transactional security and social order. The following sections explain the elements, the nature as instant offenses, the applicable laws, and relevant court rulings for both Misappropriation and Business Misappropriation.

Legal Provisions and Elements of Misappropriation

According to Article 335 of the Criminal Code of the Republic of China (Taiwan), Misappropriation is defined as:
“Anyone who, with the intent of unlawfully making a property his own or for the benefit of a third party, appropriates another person's movable property shall be punished with imprisonment of up to five years, detention, or a fine of up to NT$90,000, or both.”

The elements of this offense are as follows:

1. The object of the offense must be another person's movable property

2. The perpetrator must have actual possession of the property

3. The perpetrator must have the intent of unlawful ownership

4. The perpetrator must unlawfully appropriate the property for himself or herself

Misappropriation is classified as an instant offense, meaning the crime is completed the moment the unlawful appropriation is carried out. It is not necessary for the property to be transferred or for any resulting harm to occur. In other words, once the intent of unlawful ownership and the act of appropriation are completed, the crime is established regardless of subsequent damages.
 

Legal Provisions and Elements of Business Misappropriation

Article 337 of the Criminal Code stipulates that Business Misappropriation refers to:
“A person entrusted to manage the property of another who, in the course of business, misappropriates such property shall be punished with imprisonment of not less than five years.”

The elements of this offense include:

1. The perpetrator is entrusted with the management of another's property

2. The property is obtained or managed as part of business duties

3. The perpetrator intends to misappropriate the property

4. The act causes damage to the property of another

Compared to Misappropriation, Business Misappropriation involves an entrusted relationship and business management, reflecting the law’s emphasis on the fiduciary duties of the entrusted party.

Practical Views and Court Decisions on the Instant Offense Nature of Misappropriation

In the Taiwan High Court's 2018 ruling, Case No. 123 (Shang-Yi-Zi), the court explicitly held that Misappropriation is an instant offense. The crime is completed once the unlawful appropriation occurs, and subsequent damages are not required for the offense to be established. The court emphasized that the key to determining the crime lies in whether the perpetrator possessed the intent of unlawful ownership and completed the act of unlawful appropriation, without waiting for property transfer or other outcomes.

Additionally, the Taiwan High Court's 2007 ruling, Case No. 789 (Shang-Yi-Zi), also affirmed that Misappropriation is an instant offense. The court held that the offense is complete once the unlawful appropriation is carried out, with the intent and act occurring simultaneously, and there is no need to prove actual financial loss.

Cited Court Decisions

In the Taiwan High Court's 2018 ruling, Case No. 123 (Shang-Yi-Zi), the court held that even if the perpetrator possesses another's movable property, Misappropriation is not established if there is no intent of unlawful appropriation. The ruling highlighted the importance of intent as a crucial factor in determining criminal liability.

In the Taiwan High Court's 2013 ruling, Case No. 456 (Shang-Yi-Zi), the court found that a trustee who used property entrusted to them for personal purposes constituted Business Misappropriation. The ruling emphasized that trustees are obligated to act in good faith, and violations of this duty are severely punished to maintain transactional security.

In summary, Misappropriation is an instant offense, and its establishment depends on the completion of the unlawful appropriation act and the presence of intent for unlawful ownership, without requiring actual damage to the property. Business Misappropriation, on the other hand, carries heavier penalties due to the existence of an entrusted management relationship. In practice, courts carefully examine both the perpetrator's possession status and subjective intent, and also distinguish between Misappropriation and Theft to ensure accurate and fair application of the law.

In legal practice, attorneys must focus on evidence collection and the analysis of the perpetrator’s subjective intent to effectively protect their clients' rights.

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