Research On Crime Of Funds Misappropriation

The crime of funds misappropriation belongs to crime of misappropriation. With different legal culture and economic system, the definition of crime of misappropriation is different in every country. In our country, crime of misappropriation has been prescribed since Qin Dynasty, while there are no stipulations for such crime in the first penal code after the establishment of the country. It is a pity in law. Thereafter, with the progress of the society and the rapid development of economics, there are preliminary stipulations for such crime in the combined enforcement explanations of the supreme enforcement organs---the Supreme People's Court and the Supreme People's Procuratorate, but they are not detailed and complete and the punishments for such crime are limited too. The second penal code formally prescribes such crime clearly, but there are defects in legislation: the stipulations of the subject of the crime of funds misappropriation and crime establishment is not verbally clear and their extension is implicit; there is injustice in enforcement practice frequently; the conducts of misappropriating articles in organs cannot be constrained effectively. The author expects to arouse the attention of the authoritative scholars to this aspect and therefore the attention of the legislators through the study on the crime of funds misappropriation and personal views. This can be a reference to the improvement in the legislation of crime of funds misappropriation and the strong measures against crime of misappropriation. The paper consists of four parts as follows:The first part concerns the necessary condition for the component of the crime of funds misappropriation. This part is composed of four sections, the subject the crime of funds misappropriation, the subjective manifestation of the crime, the object of the crime and the objective manifestation of the crime. For the subject of the crime, the author employs a large amount of practical materials to demonstrate the legal foundation and manifestation of companies, enterprises other units as the subject of the crime and expound whether the contractor can be the subject of such crime. This is a foreshadowing of the improvement of legislation at the beginning of the article. In the subjective aspect of the crime, it points out that the subjective intention is direct intention, that is, the rights of use not right of possession of the misappropriate property. This is the foundation of the demonstration of the difference between crime of funds misappropriation and crime embezzlement. For the object of the crime, the author lists four views about it in the country and evaluates them and proposes that the object of the crime is complicated, that is, first the violation of property ownership and then the violation of managerial relation of the country with property. The corporate property ownership includes funds and articles belong to it, which foreshows whether those articles can be the target of the crime.In the objective aspects of the crime, based on legal stipulations, the author expounds that those who misappropriate take advantage of their position; misappropriation is superficially like borrowing but is not in nature and the three manifestations of the conduct of misappropriation. In this section the author quotes relevant enforcement explanations and specific cases. There are many elaborations in the amount of appropriated funds, the time, the whereabouts and use of the funds. It points out the defects in legislation of profitable activities and illegal activities in the crime again and reacts to preceding part, to expound whether unit articles can be the target of misappropriation with the author's personal ideas. This is a foreshowing of changing names of crime in legislative improvement. The second part is the confirmation of the crime of funds misappropriation. It is composed of two sections, the distinction of original crime and non-crime and that of the crime of funds misappropriation and relevant crimes. For the distinction of original c...