The Difference Between Embezzlement, Fraud, and Theft

I am an entrepreneur who has a trusted employee whom I entrusted to drive the company's inventory car. However, to make a long story short, the car went missing, and after investigating, I found out that the car was sold by my trusted employee.

In this case, I want to report my employee's actions. The question is, can these actions be categorized as embezzlement, fraud, or theft?

Perhaps we need to know the definition of embezzlement before discussing it further. According to the Indonesian Dictionary, embezzlement is an act that involves the process, method, and act of embezzling or misappropriating goods illegally. In a more specific sense, embezzlement can be explained as behavior that damages the trust of others by not fulfilling promises and not behaving well.

Lamintang and Djisman Samosir stated that the term embezzlement should be interpreted as "abuse of rights" or "abuse of trust." Van Haeringen, as quoted by Lamintang and Djisman Samosir, provides the understanding that the term "verduistering" or "embezzlement" means "making everything dark" or "preventing light from shining."

In Article 372 of the Criminal Code, embezzlement is defined as the act of a person who intentionally and unlawfully, possesses an item that is wholly or partially the property of another person and is under their control without a legitimate reason.

The Crime of Embezzlement consists of several elements, namely subjective and objective elements. The subjective element is the perpetrator's intention to embezzle another person's property as formulated in the article of law through the word "intentionally." Meanwhile, the objective elements consist of the element of anyone, the element of unlawful control, the element of an item, the element of partially or wholly owned by another person, and the element that the item is in their possession not because of a crime.

There are several types of Embezzlement in the Criminal Code Criminal Law (KUHP), including: embezzlement in basic form, petty embezzlement, aggravated embezzlement, embezzlement within the family, and embezzlement under Article 377. In addition, there are also other criminal acts concerning embezzlement, namely Articles 415 and 417 which are official misconducts regulated separately in Chapter XXVIII which regulates official misconducts.

Embezzlement in basic form is regulated in Article 372 of the Criminal Code, while petty embezzlement is regulated in Article 373 of the Criminal Code. Article 372 of the Criminal Code constitutes the crime of embezzlement in basic form, where a person intentionally and unlawfully claims as their own property that is wholly or partially owned by another person, but which is in their possession not because of a crime. Meanwhile, Article 373 of the Criminal Code, the crime of embezzlement with the same elements as Article 372 of the Criminal Code, but differs in that the embezzled item is not livestock and its value does not exceed twenty-five rupiah.

Fraud is an act that aims to deceive other people in a dishonest or fraudulent manner, with the aim of obtaining unlawful gain or profit. There are various forms of fraud, including financial fraud, fake newspaper fraud, internet scams, identity theft, and many more.

Fraud can harm victims financially, emotionally, or even physically. Victims of fraud may lose money or property, as well as experience other losses such as wasted time and effort to recover the losses suffered. In addition, fraud can also cause stress, fear, and anxiety in victims.

Therefore, fraud is considered a detrimental and unlawful act. The law in many countries regulates fraud and provides severe sanctions for perpetrators of fraud.

In Indonesia, the elements of fraud are regulated in Article 378 of the Criminal Code (Criminal Code). This article states that a person can be considered to have committed a criminal act of fraud if they meet the following elements:

• There is a misleading act or elimination of deception regarding something important. The act
• is carried out with the intention of deceiving other people.
• The deceived person hands over something of value (either in the form of money or goods) or promises to hand it over.
• The deceived person suffered material or immaterial losses.

Thus, to be considered to have committed a criminal act of fraud in Indonesia, a person must commit an act that misleads or deceives another person, with the aim of obtaining profits or goods from the victim. In addition, the victim must suffer material or immaterial losses, such as losing money, property, or a good reputation.

In Indonesia, the elements of theft are regulated in the Criminal Code (KUHP) are as follows:

• There is an act of taking goods. This act can be in the form of taking goods directly, seizing or taking away other people's goods.
• The goods taken must belong to another person. The goods must be owned by another person who is not the perpetrator of the theft. If the perpetrator steals his own property, then the act cannot be considered theft.
• There is no permission or consent from the owner of the goods. The perpetrator of the theft does not have permission or consent from the owner of the goods taken.
• Intent to commit theft. The perpetrator must have the intent or purpose to take another person's property without permission or consent.

If all four elements are met, then the act can be categorized as theft and will be punished in accordance with the applicable provisions in criminal law in Indonesia.

Although embezzlement, fraud, and theft have similarities in the act of taking or controlling something that does not belong to them, there are differences between these three types of crimes in Indonesian law. The following is an explanation of the differences between the three:

1. Embezzlement: Embezzlement occurs when a person holds or controls goods that should be handed over to another person or used jointly with another person, but is then used for personal gain without the permission of the owner or the person entitled to it. The difference between embezzlement and theft is at the time of taking the goods. If in theft the goods are taken directly from the owner, while in embezzlement the perpetrator holds or controls the goods with a legitimate right, but is then used for personal gain without the owner's permission.
2. Fraud: Fraud occurs when a person commits deception or trickery with the intention of obtaining an advantage or profit for himself or another person. The perpetrator of fraud uses various tricks or modus operandi that deceive the victim so that the victim suffers a loss. The difference between fraud and theft is at the time the perpetrator takes the goods. If in theft the goods are taken directly, while in fraud the perpetrator deceives the victim into giving goods or money to the perpetrator.
3. Theft: Theft occurs when a person takes or controls another person's property without permission or consent from the owner. The perpetrator of the theft takes the goods directly, seizes or carries away the property of another person without permission or consent. The difference between theft and embezzlement and fraud is at the time the perpetrator takes another person's property directly without permission or consent from the owner.

In general, all three crimes are punishable by legal action, and there are differences in the degree of the crime and the penalties imposed depending on the elements present in each case.

In the case in question, the act of a trusted employee selling the office's inventory car without the permission or approval of the owner can be categorized as embezzlement, because the perpetrator holds or controls the item with a legitimate right, but then sells it for personal gain without the permission or approval of the owner.

As an entrepreneur, you have the right to report the actions of your trusted employee to the authorities and take legal action in accordance with the prevailing provisions in criminal law in Indonesia. Embezzlers may be subject to criminal sanctions in the form of imprisonment for a maximum of 4 years or a fine of a maximum of Rp 900,000 (Article 372 of the Criminal Code). In addition, you can also file a claim for compensation for material losses arising from the employee's actions.

Disclaimer

All information and data available on Literasi Hukum are general in nature and are provided for educational purposes only. Therefore, this information cannot be considered legal advice and cannot be used as evidence in legal proceedings, including in courts, arbitration institutions, or industrial relations court proceedings.