Misappropriation or Waste: the Content of the Offence
Article 182 of the Criminal Code protects property transferred in trust: the unlawful misappropriation or waste of another's thing or property right is a crime where that thing or property right was in the lawful possession or administration of the misappropriator or the waster. The essence of the act lies in this pair of circumstances: the property was lawfully transferred to the person — through employment, a contract or another basis — and that person then disposes of it contrary to the owner's will and for his own benefit, in contradiction of the purpose for which it was entrusted.
This structure of the norm defines the facts the prosecution must prove: the fact of lawful transfer, the direction of the disposal, and the intent to misappropriate or waste. It is on this last element — intent — that the most interesting questions of the defence arise, because a civil-law disagreement and a crime often stand right on the boundary line.
How This Offence Differs from Theft
Misappropriation is framed by a composition fundamentally different from theft: in theft the property is taken from the possessor against his will, whereas in misappropriation or waste it is initially transferred to the person lawfully, and the crime is completed later, at the moment of disposal. One of the main lines of defence is therefore precisely the establishment of that moment — when and in what form the disposal took place and whether intent existed at that time.
The second important boundary is the line of a civil dispute: if the property was transferred to the person under a contract and a disagreement arose between the parties about performance — over terms, amounts or purpose — that by itself does not constitute a crime. The boundary is crossed when the disposal exceeds the mandate granted and the person treats the property as his own or spends it contrary to its purpose. The qualification of this difference decides the fate of the case.
Punishment under the Basic Composition
Under part one of the article, misappropriation or waste is punished by a fine or home arrest for a term of six months to two years or imprisonment for a term of three to five years. These punishments are alternatives to one another: the court separately chooses a fine, home arrest or imprisonment, and the framework of each variant is stated above exactly as established in the norm.