Research On Crime Of Embezzlement

Crime of embezzlement was supplemented into our criminal law in 1997,it improves regulations on embezzlement in our former legislation and makes our criminal legislation more perfect and scientific. It makes great sense that this supplement provides new legal evidence for the judicial organs to punish crimes of embezzlement, and reinforce the protection of ownerships of punish and private properties. However, due to our inadequate legislation experience of embezzlement as well as the succinct generality of legal articles, three are still limitations about establishment of crime of embezzlement, which results in great disputes in the academic circle , making its operations more difficult in the judicial practice. In recent years, many scholars come to reach common understanding on a few problems after study crime of embezzlement from simplicity to profundity, from the apparent to the deep. For example, he object of embezzlement is the ownership of public and private properties, which include chattels, immovable, tangible items, intangible items, legal items and illegal items, etc. the subjects of embezzlement is the general subject of crime. But there are still great differences in some theoretical problems, such as ranges in commendam, indecisive consistency between oblivious property and lost one, the time limit of refusal to return or refusal to hand in, litigant forms, and in judicial practice, cognizance of non-crime, this-crime, that-crime and levels about criminal ones of embezzlement, whether the criminal intervention in embezzlement should be extended or limited, scholars' different decisions towards these two problems lead to different understanding towards embezzlement. In the light of the author, the legislation and explanation of embezzlement should adopt the principle of criminal law allowance. The criminal intervention in problems which should be solved in terms of civil laws should not be excessively enlarged, and civil laws and criminal laws should be made to play their respective roles in the protection of ownership of public and private properties. For examples, "in commendam" should be limited in custodial behaviors which are produced by clientage based on trust; as for borrower relationships, leaseholdrelationships, guarantee relationships, spontaneous agency and unjust enrichment, the embezzlement in others' properties have different meanings, restrict divisions towards them aren't made in criminal laws because the judicial operations bear too thick subjectivity, which is hard to grasp. The time limit of refusal to return or refusal to hand in should be decided considering legislative intentions of embezzlement, that is, it is decided according to different cases. For cases which need reconnaissance, the final time limit should be the moment when property owners or occupants sue the doer who have returned or handed in properties or not at the people's court. Litigant forms of embezzlement should give priority to private prosecutions, then public prosecution. If there's no specific victim of embezzlement, the lawsuit is conducted by the people's court to protect the public and private property to a great extent .the key to define some criminal activity as embezzlement or theft case is to see if the doer has legal right to the property before he possesses the property illegally.In one word, this article analyzes and proves the crime of embezzlement on its legislation background, advantage and disadvantage, concept, features, cognizance, punishment and legislation perfection, based on the understanding above and basis of many scholars and law officers' research.This essay is divided into four parts, which are expounded as the following approximately 30 thousand words.Part one: concept of the crime of embezzlement.Part two: constitution of the crime of embezzlement .in this part, a brief introduction is first made on the legislation of the crime both at home and abroad, then I expound the necessity of establishing the crime of embezzlement in the criminal law of our country. After that,...