The Legislative Discussion On Setting Ordinary Breach Of Trust In Criminal Law

With the deepening development of China's market economy, the professional and complexity of the social and economic activities also increase. In this case, the participants in market economic activity-companies and individuals often commissioned some agencies of professional qualification or personal with professional knowledge and ability to handle their economic business manage their related properties. In this fiduciary relationship, the clients can not restrict the acting of trustees effectively in dealing with their property transactions. Accompanying, the trustees damaging the clients'property interests, violating the social credit system are ever-increasing; its manifestations are also shown a trend of new and diversified.In order to maintain the stability of the market economic order and guarantee a good social credit system, the use of legal regulation to conduct the breach of trust is very important and necessary. Breach of trust was originally a concept in Criminal Law of Germany and Japan, China's current criminal law is not setting Ordinary Breach of Trust, but in Criminal Law and the recently introduction of the"Criminal Law Amendment (f)"and"Criminal Law Amendment (g)"provide several charges on Special Breach of Trust. The author believes that the existing criminal law cannot cover all infidelities in market economic activities; it must be through the addition of"Ordinary Breach of Trust"in the legislation to regulate infidelities that cannot punish on the Special Breach of Trust with serious social harmfulness. This paper mainly discusses to add the ordinary breach of trust of legislation in Criminal Law, is divided into three chapters:The first chapter introduces the foreign criminal law on the legislation and the theory of Breach of Trust. Many countries of Civil Law and Common Law expressly provide for "Breach of Trust" in the Penal Code. In civil law countries such as Germany and Japan, on the nature of Breach of Trust, there are such views:"abuse of authority","breach of trust","the limited breach of trust","the abuse of authority for infidelity","meaning of the content of the decision"and"the transaction". I agree with "the abuse of authority for infidelity", which considers the essence of Breach of Trust is the trustees abuse their rights of conducting property affairs , breach the trust relationship between with the clients, and cause the loss of the clients'property. The national legislation and Criminal Law theorists have a basic consensus view on the constitute about Breach of Trust, holding the basic conditions are: those people Who processing services for others-because of the subjective intent-the implementation of contrary to the behavior of the task - caused the client's property losses. In the setting penalty area, most countries applied the legislative model which using the freedom penalty and the fine penalty at the same time.The second chapter is the focus of this article, including two parts. The first part discusses the need for setting Ordinary Breach of Trust in our Criminal Law. First, an overview of the legislation on the status of Breach of Trust, 1997 Criminal Law and the Criminal Law Amendment don't require Ordinary Breach of Trust, but the Criminal Law provides several charges on Special Breach of Trust. There has been much controversy in academic circles on which charges are Special Breach of Trust in China's current Criminal Code provisions, there are two views, "general breach of trust" and"narrow breach of trust". According to the nature and the constitution of crime on Breach of Trust, I agree with"narrow breach of trust", which considers that China's Criminal Law stipulates the Special Breach of Trust including the five crimes. Second is to propose reasons that should set Ordinary Breach of Trust in China's Criminal Law. The second part designs the Ordinary Breach of Trust in China's Criminal Law. First, proposed the general concept of Ordinary Breach of Trust, and pointed the Ordinary Breach of Trust should be set in Chapter V "crime against property" in Criminal Law; Then analyzed the circumstances of a crime on Ordinary Breach of Trust from the object, objective aspect, subject, subjective aspect. On the subjective aspect of crime, there is a view in Criminal Law theorists that the trustees must have a particular purpose. The author believes that there is no need to set the purpose of committing breach of trust. Elements of Breach of Trust should be: processing services for the other people with legal or contractual obligation, abuse the authority of property transactions, violate the trust relationship and honest obligations intentionally, cause the loss of clients'property; Then learned from foreign legislative provisions on Breach of Trust, and referred to China's criminal legislation on Special Breach of Trust, discussed the penalty of Ordinary Breach of Trust, analyzed the criminal types, the sentencing range and the penalties for unit crimes. Finally, from the two aspects-patterns of crime and common crime analyzed the amended constitution of crime on Ordinary Breach of Trust. Discussed the identified problems on Ordinary Breach of Trust in the judicial practice about attempted crime, crime termination, as well as whether it should be recognized as a common criminal, and the problem of how to be convicted and punished about those persons with and without the identity implement the infidelity jointly, individuals and units implement the infidelity jointly.The third chapter focused on the related issues of Ordinary Breach of Trust in the judicial determination. Firstly, this part discussed the boundaries of Crime or not crime that is the difference between Ordinary Breach of Trust by Criminal Law and the general infidelity by Civil Law, the breach of contract by Contract Law. Then went on to discuss the boundaries of this crime and that crime, analysis of the difference between Ordinary Breach of Trust with the five Special Breach of Trust by the criminal law provisions; and the differences between with other related charges, that is the difference between Ordinary Breach of Trust and fraud, the distinction between Ordinary Breach of Trust and general embezzlement, corruption and other occupation of crime, the difference between Ordinary Breach of Trust and misappropriation of public funds, misappropriation of funds, misappropriation of specific funds and materials and other misappropriation of crime, the difference between Ordinary Breach of Trust and abuse of power, dereliction of duty and other dereliction of crime.