Study On Defalcation

Defalcation is a common form of crime in judicial practice. However, along with the deepening of the reform, the development of the economy and the ownership diversification, defalcation, during its enforcements, becomes a quite controversial issue due to its ambiguities. With his experiences as the references, the writer makes the analysis of disputes appearing in the administration of the law and expects to contribute to the improvement of the enforcement.At first, the writer introduces the evolution of the defalcation, which was first stipulated in the Supplement to the Regulation on the Punishment of Corruption and Bribery by the standing committee of the people's congress on 21st, January 1988. But before the Supplement was announced, appropriating public funds had been defined as crime, and one committed it had been convicted, with the reference with the specific definition of appropriating certain public funds such as disaster relief, social relief, flood relief, and veteran placement, stipulated in the 126th clause of the Criminal Law 1979 vision, and appropriating funds not for special use was once punished by the law as well. What is more the stipulations on the punishments of appropriating public funds in the some other administrative regulations, the legislative basis of the nation, have even longer history. It is quite necessary to have the knowledge of the evolution of defalcation and laws and regulations related to it to ensure the proper judgment of defalcation.This article concentrates on analysis of the constitution of defalcation, elaborating the objects in defalcation, and concludes that appropriating public properties such as normal public possessions, and value securities, which can be exchanged into cash, including treasury bonds, stocks and checks is actually the defalcation. As the result of the crime is concerned, the article focuses on the common understanding that the defalcation is committed once the suspect consumes with the funds embezzled, and it probes into the situation when the public funds is embezzled, but not consumed by the suspect, and if the suspect is criminated embezzling only or consuming the public funds without embezzling. And the analysis of the hypothecated defalcation is included in the article as well. As to the subject of defalcation, in the enterprises with nationalinvestments or other companies with vague proprietorship, the identification of the suspect involving in the defalcation depends on whether the suspect is the office bearer. The identification decides the suspect is sued for defalcation or peculating normal funds. And the suspects entrusted to manage the public property by state departments, state owed enterprises or demotic organizations are considered as the subjects of the defalcation. As the suspect's intention is concerned, the article illustrates unlawfulness and randomness of the intention and elaborates the three possibilities with which the defalcation evolves into corruption. In writer's opinion that the conducts of lending public funds to non-officials or using public funds to generate profits for the state companies or departments should not be categorized as defalcation.In separate section, the article makes detailed study of the complicity of the defalcation, which has three formations: first, the defalcation is committed by more than 2 suspects, and the fund embezzled is consumed collectively, separately, or bestow the third party, and each suspect involved is the principal of the crime. Second, more than 2 suspects commit the defalcation. One or some of them make the advantage of his or their positions in the state departments to appropriate the public funds, which are shared by all or some of suspects involved. Third, defalcation is committed by more than 2 suspects, one or some of them take advantage of their positions in the public departments to appropriate the public funds, which is consumed by a third party not involved in. The article illustrates in what circumstances, the third party can be considered as having committed the defalcation, and if those involved but not consumed are convicted.The article elaborates in detail several situations in which the defalcation is committed by suspects of state officials or non officials, and concludes that the suspect who may be convicted of two different crimes, should be criminated in accordance with the principle "being charged with one crime with maximum penalty", basing on the corpus delicti of the suspect with the status of state official. In other situation of "consumed but not appropriated", person who is fully aware of the suspect conducting the defalcation and assists him committing the crime is considered as the accessorial criminal in the defalcation.