Research On The Crime Of Embezzlement

As far as crime of embezzlement, there are all kinds of divergences in the understanding. This article set out from the practical require, fixing its attention in the balance and conciliation of the application of the criminal law and civil law system. On the basis of objective analyzing ,the article tried to put forward a more reasonable and more practical opinion to guide the practice.The article put its emphasis on discussing the object of the crime of embezzlement, the characteristic of the objective aspect of crime and means of prosecution, etc. The author considered that the range in commendam include the property held in trust immediately by another person and the property held by the owner himself while illegal action of keeping is an exception. Oblivious property is the property which should have been taken away but to be left in a given spot, and then was required to be returned by the owner. One important feature of the oblivious property is that in the spot the manager have the right to perform the second control right; the loser can not only recall the location of the property but also take measures in time in order to recover his control right immediately. There are some differences between oblivious property and the lost one which can be distinguished from each other. In view of the existing mode and condition of the commendam, oblivious property , fortuna, we concluded that the owner of the property which was formulated in the No.270 in the criminal law----"another person" should be individual, therefore it is unconvincing that the object of this crime is the ownership of public or private property.In the objective aspect of crime manifested that the crime of embezzlemen showed that the actor legally hold that another person's property in advance and then turned them into his own possessions illegally, this is the objective manifestation of the actor's illegal purpose of occupancy. The form of illegal occupation is to refuse to give back or to hand over. The establish of refusing to give back or handing over, in terms of pattern, may be the clear expression in language or may be other pattern, as long as it is objectively enough to express the desire to refuse; in terms of time, should be limited to the first time when the actor declared his will to the owner of the property; in terms of the range of object of the expressed intention ,should be confined to public security units and judicial authorities; in terms of contents, not only include the return of the original item, but also the return of fruits or the loss of the devaluation of the original item.Criminal law provides that the crime of embezzlement is handled only upon complaint. The main body of complaint should not be simply confined to the victim. The near relatives of the victim should be endowed with the right of complaint when the victim was compelled or threatened so that he can not institute a proceeding. Even the prosecutorial organization should institute the proceeding on behalf of the victim so as to protect the lawful benefit of the victim. The victim and his near relative should commonly institute a private prosecution, and be permitted to informing .It should be classified into public prosecution case on the base of the nature and status of the prosecutorial organization when the prosecutorial organization institute a complaint in response to the victim's informing.