Research On Crime Of Misappropriation Of Public Funds In Judicial Practice

Crime of misappropriation of public funds is the new kind of crimes, resulting from the commodity production. It is the objective law that the phenomenon of crime of misappropriation of public funds is sticking out and exists for the long period under the condition of social economic market. In order to effectively prevent and punish the crime of misappropriation of public funds, in 1997, the Criminal Law included this kind of crime first time. The practice has tested the Criminal Law for three years since it was public, now people tend to research on the effective application of law from explanation and analysis. Law is a kind of rule, and application is her life. Only the law is implemented effectively, this law can be called the true law. In order to make Criminal Law to be obeyed and complied with effectively, the People's Supreme Court promulgated Explanations Concerning the Application of the Laws Related to Trying the Criminal Cases of Misappropriation of Public Funds on April 6, 1998. This judicial explanation has played an important role in explanation and application of Criminal Law. But this judicial explanation can not settle all judicial problems. Real judicial confusing need Criminal Law researcher to rationally review and correctly analysis. This article focuses on the legal problems related to trying the criminal cases of misappropriation of public funds in order to correctly apply Criminal Law and play the effective role in the rule- country by law. The article has four parts. Part I: the affirmation of subjects in crime of misappropriation of public funds. The article discusses the affirmation of contractor misappropriation in state-owned enterprises, which often happens in judicial practice. Then, it concludes that the misappropriation shall be published on crime of misappropriation of capital. It also shows the affirmation of nature of "user" and "complicity" in the case of misappropriation of public funds.Part II: the affirmation on objective act of crime of misappropriation of public funds. The article focuses on the affirmation on the misappropriation of public funds to the private use in judicial explanation, and suggests to cancel the differentiation of misappropriation user between private enterprise and state-owned enterprise. If the misappropriated person pursuits his private interest, reaches the amount, and does not return public funds more than 3 months, it will be considered as "private use". Countering the contention that misappropriation of common goods commits the crime of misappropriation of public funds or not, the article concludes if the misappropriated person pursuits the value of the common goods, it shall be punished on crime of misappropriation of public funds. On the act of guarantee for others by public funds and make the public funds lost, the article believes that it can not be affirmed as crime of misappropriation of public funds because the actor's subjectively does not constitutes the crime. Part III the problem easy to be confused in judicial practice. The article distinguishes the difference between the misappropriation and borrowing public funds, the crime of misappropriation of public funds and the crime of corruption, furthermore the article discusses the affirmation of borrowing the public funds by director of the enterprise. Part IV the affirmation of amount of misappropriation of public funds. The article discusses how to affirm the amount of misappropriation of public funds which should be published by Criminal Law.