On Crime Of Embezzlement

Crime of Embezzlement is a new charge established in Criminal Law in 1997. Its establishment plays a very important role in improving our country's charge system of crime of violating property, punishing and preventing crime of embezzlement powerfully, and protecting property rights and interests in all kinds of systems of ownership in an all-round way. But, crime of embezzlement is a newly established charge, so what legislation stipulates is rather general, and there are some oversights and omissions in legislation. In addition, the relevant interpretations of legislation are also relatively backward. These cause many divergences and disputes in understanding this offence in the theory circles of criminal Law and judicial departments. This situation is harmful to the unity and correct enforcement of the Law. Abiding by the stipulations of Criminal Law, consulting legislation and a number of theory research materials at home and abroad, using Criminal Law theory and combining judicial practice, this thesis discusses crime of embezzlement intended to give some reference in identifying and punishing the offence correctly and improving legislation further. The thesis first gives a brief account of the general situation of crime of embezzlement in Tai Wan, Hong Kong, Macao and other countries, and then analyzes the evolution of the legislation, background, foundation and significance of it since our Criminal Law established it in 1997. Then the thesis proceeds to show its opinion about the concept of the offence by introducing the different expressions of the concept in other countries and the different views in China's Criminal law theory circle. Besides, the thesis points out that the characteristic of the concept in our country, namely, stipulating the elements of "refusing to return" or "refusing to hand over property" embodies the spirit of legislation that controls the range of striking crime of embezzlement. From the concept of crime of embezzlement, the thesis analyzes the two main features----- Object, objective aspects. Objects include state ownership private ownership, joint state-private ownership economic entities, or state property rights. The object of this crime is a question with a lot of divergences. After comparing and analyzing, the thesis put forward its own opinion that it is made up of three parts. The first part is real estate, intangible objects, non-specific objects in another's property that are in custody; one's own property; the common objects; contraband good, or illicit property, etc. Second, as for objects forgotten, the thesis prefers the view that there is difference between objects forgotten and lost objects. Lost object cannot become the objects of this offence. Thirdly, buried objects, not only referring to private-owned, but also state-owned, collective – owned. With regard to the objective aspects, the thesis first explains that the outstanding characteristic of this offence is to change "possessing lawfully" into "controlling illegally". And it expounds that "having anything in custody" should also include the act that having control or custody of another's property without being entrusted, and that the lawful excuse for possession of another's property, both in law and in facts. There are, entrusting, lease-hold, borrowing, guarantee, having anything in one's control without lawful excuse, unwarranted gain, etc. Then, the thesis discusses the questions of "fairly great in amount" and "refusing to return" and approaches the time limits and the substantive content of "refusing to give back". It thinks that "before an expose of the offence" should be the standard of the time limits. In general, it is after the victim reports and at the time when People's court put the case on file. For the concrete meaning of "refusing to return", the thesis discusses the way of expression, objects, subjective and objective, etc. At last, the thesis analyzes some content of identifying embezzling object...