Research On Difficulty Questions On Crime Of Embezzlement

The crime of embezzlement is a new accusation of our criminal law. With the establishment of this crime, academic research went into a more deep stage and had got a plenty of research productions. However, since the establishment of the crime of embezzlement, the dispute of controversial questions on this crime still continued: such as how to understand the"in commendam", the specific objects of this crime, the understanding of objective aspects constitute"illegal possession"and"refused to return or surrender"along with the relationship between them,and the identified of the forgotten property and buried property and so on. On the other hand, the judicial practice concerning the crime of embezzlement application may have some difficulties, especially in distinguishing the criminal boundary between the theft, thus getting some disadvantageous to the judicial practice in solving related cases.In accordance with the two provisions of Article of the Criminal Law,the essential of the of embezzlement behavior are the same, but the disseizin object and the process has its own features, therefore this article will discuss the controversial issues respectively in common embezzlement and special embezzlement. On the base of analyzing the relevant dispute points and combing of case on embezzlement and theft, this paper aims to clarify the theoretic issues and locate legitimate and reasonable explanation in judicial practice. The main body of this article is divided into three parts:Chart 1: Common Embezzlement. This section discusses following three aspects of the problem. First of all, from the perspective of criminal object, the scope of criminal law is designed around the appropriate criminal object. The ownership of property is the first and significant object of the ordinary crime of embezzlement, determined by the criminal object, the specific objects should reflect the corresponding ownership. The purpose of controlling the contraband is the maintenance of social order but not the value of property, therefore the contraband should be excluded from the objects of this crime. Common Embezzlement is to break the entrusted relationship between the trustor and the trustee. For entrusted relationship is another object of the common embezzlement, without this, the act of disseizin the illegal profit should be excluded from the common embezzlement. Secondly, for the defining of the premise of common embezzlement as"keeping other person's property", the essence of the keeping others property should be regulated as"possession", that is de facto or de jure dominate others property. For academia said that the occupying of property is confined to the"legal custody", this article hold opposite view. Meanwhile, this paper thinks that only by the fact judgment of the custody relationship, the illegal entrustment property as the object of the common embezzlement can be carried out from the theory to the judicial practice. On the condition that several people participate in possession of property, the doubt of identify the belonging of the possession may cause the common embezzlement or theft qualitative difficult, here this article discusses the embezzle of the sealed content and on the employment relationship, the identification of behavior of employee encroach on employers property. Third, the analyses of the behavior of embezzle: it behaved as the holder illegally keeps others property as his own, refusing to return or surrender. On emphasizing of the behavior violates the property ownership, this article agrees with the judgment that the illegal possession should adhere to the"appropriation". Compared to the Continental law countries, our criminal law on the crime of embezzlement has the provision of"refuse to return or surrender". There are two different views on how to understand the status of"refuse to return or surrender"in the crime of embezzlement and those different perspectives on how to understand its relationship with"illegal possession"are also different. This paper argues that, in general,"refuse to return or surrender"as one of the necessary condition for the establishment of this crime, has its indispensable meaning. For the relationship between"illegal possession"and"refuse to return or to surrender", usually adhere to the independent and successively judgment, the combine of them constitute the embezzlement act. But due to the complexity of flowing and utilizing the property, in case of the change of ownership, when the behavior of"illegal possession"can include the act of"refuse to return or surrender", it can be judged as the exception of completing the embezzlement behavior.Chart 2: Special Embezzlement. This section focuses on issues of embezzling the forgotten property and the buried property. First, it talks about identification of forgotten property. Scholars have different views on if it is necessary to distinguish the forgotten property and the lost property, and whether the behavior of disseizin the lost property constitutes the crime of special embezzlement. This article gets the conclusion that there is no necessary to distinguish the forgotten property and lost property, and from the expended explanation, the lost property can be included in the forgotten property. On the boundary between the crime of special embezzlement and the theft, in awareness of the forgotten error occurs, this article takes Liang Li case for example, thinks that should be dealt with cognition errors of facts. On the disseizin of lost property found in the specific place, the popular opinion is"dual-control"theory, but the author thinks that the constituting of the"dual-control"must consider the spatial factors and the meaning of reality possession. Second, it talks about identification of buried property. When in finding the buried property, the identification of it should be defined consistent of the civil law, which refers to the owner of burial of unknown. In order to show the difference from the crime of theft, the characteristics of accidentally discovered and out of others possession should be emphasized.Chart 3: Doubts about the litigation form of accepted at complaint only on the crime of embezzlement. The litigation form of crime of embezzlement is the private prosecution, but limit on this may get some shortcomings. This article claims that litigation forms of crime of embezzlement should add the public prosecution mode as the assistant.