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A Comparative Study Of Criminal Breach Of Trust

Posted on:2011-11-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:L ChenFull Text:PDF
GTID:1116330332458496Subject:Criminal Law
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At present, our country is on the stage characterized by rapid development of economy and market transformation, and thus witnesses large numbers of behaviors that infringe right of public and private property and damage ordered development of market. However, there are certain flaws appearing in the process for present criminal legislation in our country to standardize such behaviors. In addition, scholars in our country also hold different view to understand crime and propose that legislation authority shall add crime to rectify and regulate law-breaking behaviors that do not belong to credibility, which leads to difference in getting acquainted with behaviors. Such phenomena reflect the lag of legislation, judicial and theoretic research on crime in our contry. Germany and Japan are two countries that boast most abundant practice experinece in the aspect of legislation and justice. Thereofre, to study present legislation of Criminal Breach of Trust in Germany and Japan as well as relevant theories, analyze current legislation of Criminal Breach of Trust in our country, and campare deeply the similarities and differences of Criminal Breach of Trust in our country and that in Germany and Japan will be conducive for our correct understanding of connotation of Criminal Breach of Trust and breach trust actions, pursue of nature of Criminal Breach of Trust, and fully acquaintance with deficiency of Criminal Breach of Trust in our country, which will be extremely significant for improving legislatin of Criminal Breach of Trust.This thesis consists of three parts, i.e. introduction part, main body, and conclusion part. The introduction part focuses on illustrating research background and significance, contemporary progress of questions related to breach trust both domestic and abroad, as well as innovations and limitations of this study. The current limitations of legislative regulation of criminal law in our country and a few scholars'deviation of understanding Criminal Breach of Trust grant extremely significant realistic meaning for conducting a comparative study of Criminal Breach of Trust in our country and that in Germany and Japan. At present, the study on Criminal Breach of Trust in our country mainly limits on simple introduction to present progress of legislation of German and Japan and relevant theories, failing to analyze in depth the connotation of Criminal Breach of Trust and distinguish breach trust behaviors from default behaviors. In addition, the studies on breach trust to harm the interests of the listed company and on the breach trust of entrusted property in our country all limit on analysis of elements in crimes and justice finds, and the essence theory on Criminal Breach of Trust in our country has not been proposed and in-depth comparative study on Criminal Breach of Trust and that in Germany and Japan is deficient. Therefore, there is need to further illustrate the connation of Criminal Breach of Trust, reasonably distinguish breach trust behaviors from general default behaviors, and properly understand the connotation of Criminal Breach of Trust by studying the legislation background, legislation evolution, and present study on legislation of Criminal Breach of Trust in Germany and Japan, and to comparatively study the similarities and differences between Criminal Breach of Trust in our country and that in Germany and Japan on this basis with a view to proposing corresponding plans for the improvement of legislation of Criminal Breach of Trust in our country.The main body of this thesis is divided into five chapters, in which Chapter One, i.e. Introduction to Criminal Breach of Trust, is a general introduction to Criminal Breach of Trust with three parts listed. The first part in Chapter One is entitled Concept and Name of Criminal Breach of Trust which gives a detailed introduction to basic structure of Criminal Breach of Trust, misunderstanding of a few scholars in our country on Criminal Breach of Trust, and name of Criminal Breach of Trust. The second part, i.e. Legislation Evolution of Criminal Breach of Trust, is devoted to complete representation of sprout and forming process, causation and basis of Criminal Breach of Trust by following time order, which lays a good foundation for properly understanding connotation of Criminal Breach of Trust. The third part, i.e. Legislation of Criminal Breach of Trust, gives a detailed analysis of legislation of foreign countries and other areas in which Criminal Breach of Trust has not been regulated and Criminal Breach of Trust has been standardized from the angle of space shaft, which hides the foreshadowing for the comparative study of next chapters.The second chapter, i.e. Study on Typical Criminal Breach of Trust in Germany and Japan, respectively analyzes in-depth and studies present legislation of Criminal Breach of Trust in Germany and Japan. The first part, i.e. Study on Present Legislation of Criminal Breach of Trust in German, starts from the stipulation of Article 266 of German legislation to categorize the elements in Criminal Breach of Trust in Germany into two kinds, elements in abuse power and elements in back support. According to general theory in academic circle of Germany, the crime behavior that meets the condition of abuse power refers to the action in which the actor oversteps the permission of internal trust relation to exercise external legal right. Thus, power abuse must meet such two conditions as being external and legal behavior. The crime behavior regulated by elements in back support refers to behavior that the actor engages in to violate the duty of property management, which gives an extreme extensive scope and imposes on no limitations on such breach trust such as being external and legal. However, both elements in abuse power and back support are based on the prerequisite of property damage to claim the Criminal Breach of Trust. The second part, i.e. Study on Present Legislation of Criminal Breach of Trust in Japan, starts from the regulation of Article 247 of Japanese criminal law and analyzes such elements of conditions of Criminal Breach of Trust as subject, behavior, subjective purpose, and result of property loss. The Criminal Breach of Trust is identity crime and its subject is limited to person who handles affaris for others, which refers to handling affairs of others for and on behalf of others. Thus, in case of handling affairs of oneself for other people, this element is not qualified for this Criminal Breach of Trust, which is a major point for distinguish breach trust from general default behavior. Doctor Tuanteng proposed concepts of internal relation and opposality relation yet fails to give clear definition and interpretation when summarizing what are affairs of other people. Furthermore, Criminal Breach of Trust in Japan requires that the subject exercises behavior that is against task and causes loss in the aspect of property for seeking profits for himself or herself or for the third party or for causing damage to himself or herself.Based on the reality of criminal legislation in China, Chapter Three analyzes and studies the present situation of Criminal Breach of Trust in our country. Criminal Laws passed in 1979 and 1997 by our country did not stipulate the general Criminal Breach of Trust until the Amendment 6 to Criminal Law passed in 2006 regulated two special crimes of breach trust, i.e. breach trust to harm the interests of the listed company and the breach trust of entrusted property This chapter is consisted of two parts, in which the first part, i.e. Breach Trust to Harm The Interests of The Listed Company, introduces legislation background of this crime, studies and analyzes crime dispute related to this aspect, and draws the conclusion that the breach trust to harm the interests of the listed company not only uncover the nature of breach trust but also reflects the core element of harm, successfully reflecting the extension of this crime and relevant boundary from all directions with concise, common, scientific, and reasonable expression. Furthermore, this part also analyzes and studies the breach trust to harm the interests of the listed company from such aspects of subject element, subjective element, objective element, and crime object. The second part, i.e. breach trust of entrusted property, also introduces the legislation background of this crime, studies and analyzes the element in this crime with a view to master the element in Criminal Breach of Trust of entrusted property from aspects of object element, subjective element, objective element, and crime object.As the substance of whole thesis, Chapter Four comparatively studies Criminal Breach of Trust in Germany and Japan and that in our country in the aspects of nature and element in Criminal Breach of Trust on the basis of research listed in Chapter Two and Chapter Three. There are always big disputes on nature of Criminal Breach of Trust in the academic circles of Germany and Japan, and representative viewpoints are theory on abuse power, theory on breach trust, theory on abuse power of breach trust, and theory on international trust relation etc. Two kinds of Criminal Breach of Trust in our country limit the meaning of breach trust on violating duties of being faithful and entrusted, which provides new idea and legislation foundation for understanding the nature of Criminal Breach of Trust. Through comparative analysis, the author holds the view that the theory on breach trust uncovers the nature of Criminal Breach of Trust with correct and reasonable core substance from the angle of property damage caused by violating trust relation, but unlimitedly understanding the very abstract value concept of trust relation as the prerequisite of breach trust will lead to vague boundary of breach trust and impossibility to distinguish breach trust and general default. Japanese Doctor Tuanteng once proposed the standard to distinguish internal relation and opposality relation, but failed to specify their connotation. On the basis of comprehensive and comparative study, the author proposes her own viewpoint on internal relation and opposoality relation. Internal relation refers to the internal trust relation between the actor and the principal. The actor is the extensive subject of the principal who is engaged in economic activity. The two persons appear as the same party concerned when handling this affair. The action orientation of the actor is the third party or irregular counter party instead of the very person. And the opposality relation refers to the relation of both parties who are action objects who appear as different objects instead of the same party concerned. The action orientation of the actor is the very person. On the basis of understanding of such internal relation, the author further proposes the new point on nature of crime of breach trust, i.e. theory on internal trust relation in the process of handling economic affair, in which the nature of breach trust is the crime which causes the damage to the proper of the very person for the internal trust relation between the entrusted subject and the very person in economic activity fails to handle affair from the perspective of maximum profit of the very person.In addition, Chapter Four in this thesis also comparatively studies the elements in Criminal Breach of Trust in our country and those in Germany and Japan. By comparison, the author finds out similarity and their unique characteristics. Firstly, from the aspect of subject, the Criminal Breach of Trust in our county and that in Germany and Japan are all identity crime with subjects of special ones i.e. person who handles affairs for others. However, the two kinds of crimes of breach trust are defined by our country as that breach trust to harm the interests of the listed company includes crime of natural person and that of unit and breach trust of entrusted property only limits on crime of unit. The subject of Criminal Breach of Trust in Germany can only be crime of natural person instead of unit or legal person. Moreover, from the covering scope of subject, the combination of subjects of two kinds of crimes of breach trust is less than the scope regulated in Criminal Breach of Trust in Germany. In addition, from the perspective of objective aspect, crime of breach trust in our country and that in Germany and Japan are all trust-violating actions that subjects implement and belong to property crime, but the specific definition of breach trust included in Criminal Breach of Trust in our country and covering scope of action are different from that in Germany and Japan that are based necessarily on property loss and belong to result crime. Breach trust to harm the interests of the listed company in our country is also the result crime and the element in committed crime is based on significant loss caused to the listed company, while breach trust of entrusted property is the circumstance crime and the element in committed crime is based on significance of circumstance. Secondly, from the perspective of subjective aspect, Criminal Breach of Trust in Japan belongs to purpose crime in which the action is taken on purpose in the subjective aspect and for the purpose of gaining profits or imposing harm, i.e. obtaining interests for the actor or the third person and causing damage. Neither Criminal Breach of Trust in Germany nor two kinds of special crimes of breach trust in our country belong to purpose crime with such a special requirement in terms of this aspect. Finally, from the perspective of crime object or protected legal benefits, Breach trust to harm the interests of the listed company infringes dual objects, i.e. interfering management order of the company and enterprise as well as property right of listed company, and breach trust of entrusted property only infringes simple object, i.e. damaging finance management order. The legal benefits that Criminal Breach of Trust in Germany and Japan protects is the property right.Through aforesaid comparative study, it is not difficult to find out that the scope in terms of subject and action of Criminal Breach of Trust in our country is regulated as more narrow than that in Germany and Japan and unsatisfactory points in the process of regulating general breach trust. On the basis of aforesaid conclusion, Chapter Five proposes legislation suggestion to improve Criminal Breach of Trust in our country. This chapter firstly testifies the necessity and feasibility of increasing general Criminal Breach of Trust in our country and puts forward model and conception of Criminal Breach of Trust and conception on setting up element in Criminal Breach of Trust and that on criminal punishment of Criminal Breach of Trust. Meanwhile, the present two kinds of crimes of breach trust are necessary to exist in the practice because of their distinctiveness of regulated subjects and thus from a cooperation relation of legal regulations in which special law and general law coexist since the Criminal Breach of Trust is newly increased. Of course, there are still certain limitations of these two special crimes of breach trust in aspects of subject scope, action mode and circumstance result which shall be improved properly for perfection. For breach trust to damage interests of listed company, the author proposes to increase the action mode of dividend that against law to regard it as the sixth action mode, i.e. Violating regulations of company law to distribute profit or stock capital. For breach trust of entrusted property, the author proposes to increase crime subject of natural person and cancel the conduct element of serious conduct of breach trust of entrusted property, and to increase the result element of causing significant loss to clients.Part Three in this thesis is the conclusion. On the basis of study and analysis of main body of previous chapters, the conclusion part summarizes major viewpoints of the author and research conclusion. Firstly, the author specifies specific connotation of international relation and opposality which is the standard for distinguishing affaris of others and affairs of the principal as well as breach trust and general defaulty. In this way, action of actor can be determined be breach trust or not by distinguishing relation between the actor and the principal is internal relation or opposality relation. In other words, clear distinguishing internal relation from opposality relation gives rise to apparent connotation and scope of Criminal Breach of Trust. Secondly, the author absorbs reasonable core of theory on breach trust, proposes new viewpoint on nature of Criminal Breach of Trust, i.e. theory on internal trust relation in the process of handing economic affairs by comparatively studying various theories on nature of crime trust in Germany and Japan as well as that in our country. In other words, the nature of Criminal Breach of Trust is the property crime action that the subject is engaged in by violating internal trust relation between the entrusted subject and the principal in economic activities and causes damage to property of the principal. Thirdly, the author proposes suggestion to improve legislation of Criminal Breach of Trust on the basis of comparative study on elements in Criminal Breach of Trust in our country and that in Germany and Japan. The author also suggests increasing a general Criminal Breach of Trust to regulate serious breach trust. Meanwhile, the present two kinds of crimes of breach trust are necessary to exist in the practice because of their distinctiveness of regulated subjects and thus from a coopetion relation of legal regulations in which special law and general law coexist since the Criminal Breach of Trust is newly increased. Of course, there are certain inconsistent points of these two special crimes of breach trust in aspects of subject scope, action mode, and circumstance result, which shall be properly improved for perfection.
Keywords/Search Tags:Criminal Breach of Trust, Comparative Study, Suggestion for Improvement
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