Discuss The Criminal Subject Of Embezzlement

The criminal subject of embezzlement is one of the essential components of the constitution of embezzlement guilt. Ever since its establishment before the founding of new China, it has been amended and changed several times because of the constantly changing politics, economic system and social life. And its recognition has ever been a knotty problem in the theories of Penal Law, because the provision of Penal law is abstract and general and the legislative and judicial explanations are interwoven.The criminal subject of embezzlement is mainly embodied in the two items of 382rd provision of Penal Law. That is "the state functionary" in its first item and "the personnel who are entrusted by the government office, state-owned corporation, enterprise, institution, mass organization to administer or manage state-owned property" in its second item. Because this two type of personnel have different status in Penal Law, the criminal subject of embezzlement actually consists of two part of personnel. One part is "the state functionary", which is the basic criminal subject of embezzlement. The other part is "the personnel who are entrusted to administer or manage state-owned property", which is the supplementary criminal subject of embezzlement.The author of this dissertation starts at the legislative history of criminal subject of embezzlement, focuses on the provision of the criminal subject of embezzlement in Penal Law and attempts to probe into this concept systematically in order to clarify it.This paper consists of seven parts.The first part is forward. Introduces the significance of researching the criminal subject of embezzlement and points the important issues in identifying the criminal subject of embezzlement at present.The second part introduces the legislative history of this crime ever since the establishment of new China, compares and analyzes briefly the legislative and judicial explanations concerned in various periods.The third part focuses on state functionary, the basic criminal subject of embezzlement in the current Penal law. Centering on the explanation of the 93rd provision of the current Penal Law, it puts forth the criterion of combining the exterior identity and interior official business when identifying state functionary. It also discussesin detail some disputable focal points, such as government offices, state-owned corporation, enterprise, institution, mass organization," appointed" and "other personnel engaged in official business according to law", hi all these points, the author of this dissertation puts forward her own views.The fourth part discusses the supplementary criminal subject of embezzlement with the focus on the conditions of the formation of entrustment and the ways of entrusted to administer or manage state-owned property. Analyzing the relationship between the second item of the article 382 and the article 93 of Penal Law, it also attempts to discuss the legal position of "the personnel who are entrusted to administer or manage state-owned property", assuming that "the personnel who are entrusted to administer or manage state-owned property" do not belong to "other personnel engaged in official business according to law" ,their being the criminal subject of embezzlement owes to the specific provision of Penal Law.The fifth part states the nature of the criminal subject of embezzlement. Based on the analysis of the theories about the nature of the criminal subject of embezzlement and the specific provisions in Penal Law, it puts forward the idea that engagement in official business is the true nature of the criminal subject of embezzlement. It also discuss the content and feature of the official business.The sixth part discusses the legislative weak points concerning this crime in the current Penal Law and suggests to perfect it. hi the view of the author, the provision of criminal subject of embezzlement in current Penal Law do not coincide with the constitution of embezzlement guilt in some circumstances and it destroy the balance between embezzlement and other crime subjects, meanwhile it causes the overlap and disorder between the crime subject of embezzlement and functionary occupation guilt. So the author suggests to revise the concept of embezzlement and to redefine the criminal subject of embezzlement.The last part is conclusion. The author of this paper concludes the whole dissertation and mentions some noticeable problem about the theory research and practical judicatures.