In this post we are going to explain what the crime of misappropriation consists of. In a simple way, misappropriation is keeping something you have received, without having the right to make it your own.
What is misappropriation?
Misappropriation takes place when you appropriate for yourself or for a third party, money, securities or any other movable thing, which you have received with the obligation to return it or refuse to have received it.
The difference with other crimes, such as fraud, is in the fact that there is no deception in the first or that possession of the thing was temporarily ceded legitimately, the problem appears when it is not returned.
Where is the crime of misappropriation described?
What can fall for this crime is stated in articles 253 and 254 of the Penal Code, specifically, it is typified in the title dedicated to crimes against property and the socioeconomic order.
What are the requirements for the crime of misappropriation to take place?
In order for a conduct to be considered a crime of misappropriation, the courts demand the requirements explained below:
1. That the author receives money, securities or any other movable thing, for example, a motorcycle.
2. That the author has the legitimate possession of said property for having received it from another who was legitimately entitled to have it.
3. That the author has the obligation to deliver or return them.
4. That the author makes his own the thing that he had to deliver or return.
5. That there is patrimonial damage to the victim of the crime.
To be able to accuse an individual of appropriation of money or goods, it is necessary to start from the fact that the person who denounces is the owner or legitimate possessor of the object in question.
Likewise, it will have to be proven that he had an agreement to temporarily assign (not sell or give away) the goods that are the subject of the problem.
In short, it has to be proven that possession of some assets has been temporarily transferred, and they have been given a different use for which they were transferred or when the time comes they do not want to be returned to their legitimate owner.
What is the punishment for misappropriation?
It is not easy to establish the penalty for the crime of misappropriation, because several factors must be taken into account, so in each case it will be different. When setting the penalties for the crime of misappropriation, the Penal Code refers to the crime of fraud, that is why we have to refer to what is included in article 249 and 250 of the CP.
- The misappropriation of money, securities or any other movable thing, which had been received in deposit, commission, or custody, is punishable by imprisonment from 6 months to 3 years.
- There is an aggravated penalty, increasing the punishment to a sentence of 1 year to 6 years in prison and a fine of 6 to 12 months.
- There is also a very aggravated penalty of 4 to 8 years in prison and a fine of 12 to 24 months, if special circumstances are met or the value of the property exceeds €250,000.
- In any other case, the appropriation of someone else's chattel is punishable by a fine of 3 to 6 months.
- In the case of things of artistic, historical, cultural or scientific value, the penalty will be imprisonment from 6 months to 2 years.
How to prove misappropriation?
Our advice is to immediately file a complaint for misappropriation and concentrate the test on three fundamental aspects:
- Delivery of possession of the property.
- The obligation to return or deliver it to a third party.
- The value of the property.
For this, any means of proof will be valid, but those that have documentary support by means of contracts, delivery notes, etc. will have greater probative force.
It will be very important that you have an expert report that justifies the value of the goods. Because if the value is less than €400, you are facing a minor crime, on the other hand, if the value exceeds €250,000, very aggravated penalties will be imposed.
We want to emphasize that, depending on the value of what is appropriated, you may be facing a crime of misappropriation or a minor crime of misappropriation. There is also the possibility if the facts are very clear and accredited, that the crime of misappropriation be prosecuted, in accordance with article 795 LECRIM by the fast trial procedure.
When does this crime prescribe?
The prescription of the crime of misappropriation is complex due to the different penalties that can be imposed, thus, in accordance with article 131 of the Penal Code, the prescription time will range between a minimum of 5 years and a maximum of 10 years for the case of penalty. very aggravated.
The crime of misappropriation of a vehicle
This crime takes place when, for example, a vehicle is rented and after the rental time has elapsed, it is not returned. Another example would be when the vehicle is left to someone and when the time comes that person does not return it.
The crime of misappropriation in the breakup of couples or marriages.
We want to emphasize that on many occasions when the couple or the marriage separates, one of the parties may be premeditated with assets that privately belong to the other spouse or partner.
In these cases, you could be facing a misappropriation crime or misdemeanor and you have the possibility of filing the corresponding complaint.
What are the differences between theft and misappropriation?
The difference between theft and misappropriation will revolve around the legality of possession of the property. In misappropriation, the mess begins by assuming that there is lawful possession and consent of the person who delivers the property, on the other hand, in theft, possession of the property is achieved without the will of the owner.
Mild crime of misappropriation or improper theft
It is a minor crime of misappropriation when the value of what is appropriated is less than €400. The prize is the penalty of a fine in a range of 1 to 3 months. In the case of a minor crime, the statute of limitations will be one year.
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