The Embezzlement The Crime Hard Problem Research

The report is writer's analysis of the Mr Zhang's case of Embezzlement. In this case, Mr Li left the envelope with 20'000 yuan on the seat at the waiting area while he went to the bank, and Mr Zhang happened to find it when he walked into the bank for transction. Therefore,Mr Zhang put the envelop into his own pocket while the security turned around and walked out of the bank immediately. Mr Li came to Mr Zhang afterwards, and Mr Zhang made a promise of returning money verbally. Due to money was spent by Mr Zhang for visiting doctors , Mr Zhang avoided meeting Mr Li many times so that the money remains un-returned. Mr Li then reported the case to the police, the police took long placing on file for investigation and prosecution due to the dispute on whether police have the jurisdiction over the case. Whether Mr Zhang should be charged by larceny or embezzlemet, and whether the police force should be involved in investigation have roused the dispute within the legal profession. The focus of the argument covers a few key issues within the judicial practice of indentification for the embezzlement case: how to determine the"misplaced goods"in the embezzlement case, the determination of"legal possession"of the misplaced goods and the indentification of"second layer of control", how to understand"refuse to return".The writer elaborates the above issues by piecemeal baesd on the comparison and research of relative theories, makes comparatively appropriate determination for the introductory case and it also provides the reference resources for the judical practice.Embezzlement is the act of dishonestly possessing assets by one to whom such assets have been entrusted and refuse to return ,or illegal possession of the misplaced goods and treasure troves and refuse to surrender, which also involves relatively big amount.Embezzlemet came into practice as an independent charge in the new criminal law at 1997.Based on the analysis of essence of crime, it differentiates from larceny, the objects of crime are these assets ,misplaed goods and treasure troves which have been entrusted by others. The essence of embezzlement is to convert legal assets for an unsanctioned personal use.The author deems that the"misplaced goods"of crime target in the case of embezzlement is placed by the asset proprietor or holder consciously, and forgotten to take away by negligence. Based on the theories of criminal legislation, misplaced goods is differ from lost property and also differs from hangover. When the misplaced goods is in specified area , the personnel concerned in this area can have the second layer of control over the property. However, whether this second layer relationship can be established depends on the differences between the different public area and non-public area. At public area, the establishment of the second layer relationship requires administrator has the explicit dominate mind over the misplaced goods; while at non-public area, the establishment of relationship requires administrator has the general dominate mind over the misplaced goods. Only if under the circumstance of estalishment of the second layer relationship, can the concerned personnel within the area be able to keep the misplaced goods legally. therefore the third person would not be an embezzlement but a pilferage or others. Whereas parties concerned refuse to return in the embezellment , when feasors posses other's assets due to the purpose of illegal possession, they refuse to return it even though they are capable of doing it. It means that converting other people's assets to its own. In parctice, there are many forms of"refuse to return". The time limit for determine the commission of a crime is essential, it depends on the neceesaity of involement of the police force's invsetigation. Nevertheless, the drawbacks of law-making stipulation limit that the police force can not be invovled in the investigation of embezzlement, which is disadvantageous for the protection of legal rights for citizen, community and contry; and it would cause the situation of ineffective crackdown.It is suggested by writer that the form of embezzlement should be consummate, the priorities should be given to private prosecution while supplemented by public prosecution.Based on above analysis, this case should be determined the nature of an embezzelemnt offense, besides the police force should perform their functions vigorously to assisst Mr Li's right of misplaced goods by finding Mr Zhang.