09 Sep embezzlement and aggravated fraud

The distinctive element between the crime of embezzlement and that of aggravated fraud, according to the article 61, number 9, of the criminal code, it must be identified with reference to the methods of possession of the money or other movable property of others subject to appropriation, the first figure applies when the public official or person in charge of a public service appropriates it, already having possession of it or in any case availability due to his office or service, and recognizing himself, instead, the second hypothesis when the active subject, not having such possession, if you obtain it fraudulently, using tricks or deception to take possession of the property (Cass. 24604/23). Fraudulent conduct can also be added to embezzlement conduct, finalized, But, not to obtain possession of money or movable property, but to conceal the commission of the offense or to ensure impunity: in this case, embezzlement must be recognized, in which – at the norm- the aggravated fraud remains absorbed, save the chance, in relation to specific concrete cases, of the conspiracy of crimes, given the different legal objectivity, the diversity of taxable subjects. the different profit, the different consumption moment. In other words, the crime of embezzlement occurs when it is the reason for his office or service; always dealing with embezzlement when the agent also engages in fraudulent conduct that has no impact, But, on the possession of the property, in the sense of achieving its availability, but has the sole function of masking, at least apparently, the commission of the crime. It recurs, instead, the aggravated fraud ex article 61, number 9, of the criminal code. when the agent, not having possession of the property, if you obtain it fraudulently based on the contextual or subsequent appropriative conduct. On the verge, it was thus further clarified that the difference between embezzlement and fraud must be identified in the fact that in the first case the possession and possession of the money for institutional purposes constitute a antecedent of the criminal conduct, while in fraud the seizure of the res is the effect of illicit conduct: hence the corollary whereby it is to the relationship between possession, on the one hand, and artifices and deceptions, on the other, which must be taken into account, in the sense that, if the latter are aimed at masking the illicit appropriation by the agent of the money or assets which he already legitimately had available due to his office or service, the embezzlement scheme will recur; so far as, instead, the fraudulent conduct is carried out precisely to obtain possession of someone else's money or movable property, the paradigm of aggravated fraud will be integrated.