Analysis Of The Legal Interpretations Of The Crime Of Misappropriating Public Funds

The crime of misappropriating public funds is a new crime set up in the new criminal law. It is the key work and long-term task of academic research of judicial practitioners to make great efforts to prevent and firmly crack down upon the criminal activities of misappropriating public funds as well as continuously present the effective strategies and measures according to the new situation and characteristics. In this paper, started from the evolution of legislation of the crime of misappropriating public funds and based on the real intention of legislation of misappropriating public funds, the "for personal use"is first given a deep discussion, it is explicitly presented that the misappropriated public funds for the use of the private companies and enterprises belong to the personal use and the definitions of "striving for personal interests"and "for personal use"are analyzed. Secondly, the author's own opinions on "not returning a large sum of misappropriated public funds"are presented, thinking that the reasons for not returning should be limited to the general profit-making activities and the time of not returning should be limited prior to pronouncement of judgment. Thirdly, based on the concrete cases in the judicial practice, some concrete suggestions on some problems of the quantity of crimes of misappropriating public funds are put forward in order to accurately strike the crimes of misappropriating public funds. The paper is divided into five parts. In Part 1, the evolution of legislation of the crime of misappropriating public funds of China is introduced. The crime of misappropriating public funds, as a separate crime occurred late in the history of the criminal legislation, earliest seen in Article 3 of the Supplementary Provisions on Punishment of Crimes of Corruption and Bribery formulated by the Standing Committee of the National People's Congress on January 21, 1988, but it does not mean that the criminal responsibilities of doers misappropriating public funds were not investigated before. In 1997 when the criminal law was revised, the crime of misappropriating public funds was explicitly described specifically in Article 384 in the chapter of Crimes of Corruption and Bribery on the basis of absorbing the provisions on the crime of misappropriating public funds in the Supplementary Provisions and the integration of judicial practice and experiences in recent ten years. After the new criminal was carried out, 4 legal interpretations appeared one after another to adapt to the needs of judicial practice. In Part 2, the key analysis is given to "misappropriated public funds for personal use", with the problems in the five aspects discussed. The first is the problem of the misappropriated public funds for the use of the private companies and enterprises belong to the "misappropriated public funds for personal use". The Interpretation in 2001, which eliminates the attribute of the personal property owned by the private companies, completely deviates from the legislative spirit for the crime of misappropriating public funds. The Legislative Interpretation only stipulates that "the public funds for the use of the person himself or herself, relatives and friends or other natural persons"belong to the personal use, which eliminates the attribute of the personal property of the private units alike and does not completely represent the legislative spirit for the crime of misappropriating public funds established in the criminal law. The second is the problem of the use of the public funds for other units. It is thought that the Legislative Interpretation scientifically defines the range of the "users of public funds"and directly answers the problem of "personal use"including the use for the units as well as takes greater prominence to the nature of "the public funds for private use"of the crime of misappropriating public funds. The third is the problem of giving the public funds for other units in the personal name. It is thought that the doer misappropriates public funds mostly "in the personal name", which is the mode of the doer personally using the public funds and should undoubtedly be defined as "for the personal use"and there should be no additional need to prove that the doer aims at striving for personal interests. The fourth is the problem of striving for personal interests. The author thinks that the important documents of "striving for personal interests"should be eliminated. The fifth is the definition of "the personal use". The author thinks that the national public servants make use of authority to misappropriate public funds for personal use, which is stipulated as putting the public funds, as a matter of fact, at the personal disposal in the criminal law. And who are the users of public funds and where the misappropriated public funds go should not influence the existence of the crime of misappropriating public funds. In Part 3, the "not returning a large sum of misappropriated publicfunds"is analyzed. Firstly, for the reasons for not returning, the author thinks that it, in fact, gives loose rein to the occurrence of the result of not returning public funds and the indirect deliberation of the crime of bribery if the doer uses the misappropriated public funds for the high-risk investments or other illegal activities. The reasons for not returning public funds should be limited to the fact that the doer subjectively has no intention to return the public funds for no reason. Secondly, for the time of not returning, the author thinks that the time of not returning is limited prior to the pronouncement of the trial of first instance, which is not suitable to the discipline of judicial practice, and should be limited prior to the pronouncement of the judgment, which is suitable the real intention of legislation and can fully protect the ownership of public property as well as decreases the losses to the maximum extent. In Part 4, the problem of misappropriating public funds for many times is dealt with. Firstly, for the determination of the amount of the newly misappropriated funds paid for the old, the author thinks that it is only limited to the calculation of the amount of money not returned, instead of the interpretation of the amount of money in the crime of misappropriating the new to pay for the old, in the expression of Article 4 in the Interpretation 1998. As far as the misappropriation of public funds for many times is concerned, the total accumulative amount of the public funds misappropriated each time should be regarded as the amount finally determined. Secondly, for whether the misappropriation of public funds for many times needs giving an aggravated punishment beyond the maximum prescribed, the author thinks that the provisions on the aggravated punishment on cumulative offenses of thefts of the Supreme Court can be referred to as far as the amount of money is concerned, that is, the criterion for determining the accumulative amount of misappropriated public funds for many times as the one approaching a huge amount. Only when such a criterion is achieved, can the aggravated punishment be given; otherwise, only a lesser punishment can be given. In Part 5, some other problems of the legal interpretations of the crime of misappropriating public funds are analyzed. The first is the quantity of crimes of misappropriating public funds. For those actions which are regarded as crimes by misappropriating public funds for illegal activities, the author thinks that the cases of misappropriating public funds for illegalactivities are very complex in judicial practice, which should be determined according to the concrete situation and dealt with in the following four cases. For those actions which ask for and accept bribes by misappropriating public funds, the author thinks that the actions taking the public funds for the use of relatives and friends or other natural persons as well as taking the public funds for the use of other units in the personal name but not asking for personal interests can be regarded as crimes separately, and at this time the actions asking for and accepting bribes should be regarded as crimes, with the concurrent punishment for several crimes carried out. If the public funds is personally misappropriated for the use of other units in the name of the unit and used for taking personal interests, the judgment of a felony should be chosen. The second is the accomplices of the crime of misappropriating public funds. The author points out that it is only stipulated in Article 8 of the Interpretation 1998 that in which cases the users can be regarded as the accomplices of the crime of misappropriating public funds, without the implications of limitation and exclusion, which is not applicable to the other doers beyond the users. According to the general principle of the joint crime, the persons beyond the users can help or instigate the national public servants to misappropriate public funds, without the persons beyond the users regarded as the accomplices eliminated. The third is the converted criminal of the crime of misappropriating public funds. The author thinks that the doer who runs away with the misappropriated public funds should be punished for the crime of corruption. Such a crime is a converted one of corruption. The converted crime does not necessarily agree with the basic component of the crime after conversion. If only the doer subjectively and deliberately runs away and the above actions objectively exist, the crime of corruption should be determined.