On The Crime Of Defalcation

Defalcation is one of the official crimes committed by state officers, which has the nature of malversation. It infringes the rights of possession, usage and proceeds. At the same time it also infringes the probity of official conduct of state officers. Even over 2000 years ago, there were provisions about defalcation in the Law of Qin Dynasty in China. With the development and progress of feudalist legal system, provisions on the crime were also included in the Law of Tang Dynasty and in later Song, Yuan, Ming and Qing's criminal legislation. It's worth mentioning that those privisions are more specific and canonical so as to have significant influence and be referred to.Since defalcation was provided separately, a number of judicature interpretations and legislation interpretations have been made. Thus, the application of defalcation is effectively instructed.The thesis analyzed constitution of the crime of defalcation according to provisions in current criminal laws. The object is possession, usage and proceeds of public property and its material profit based on the public reliance on legal exertion of state's public power. The public property here includes public fund and specific public property. As to the objective aspects, it needs the advantage resulted from officers' functions and powers, and it is for personal use. To be more specific, there are three types of usages, namely, illegal action, profitable action and failure to return within time limit. Illegal action comprises profitable unlawful action as well as unprofitable unlawful action. And therefore, it intercrosses with the second type. The three types differ from each other in the constitution of crime. The subject is state officers, i.e., state officers and would-be state officers. The ingraining characteristics is engaged in duty. In subjective aspects, only direct intent can do.In terms of the suspended situation of the intentional crime, there are varied viewpoints. The bone of contention is the diversified attitude on the relationship between embezzlement and usage. It is not simply embezzlement plus usage. Once the conductor embezzles, no matter whether it's been used, it will lead to the result of infringement. Provided the amount and duration are tenable, the crime is accomplished. Usage is theactual state of unlawful possession after the crime is accomplished. Hence, it is not compliant with the nature of continuous crime. The validity of time should be counted since the day when the public property is embezzled.At present, provisions of defalcation in China's Criminal Law are faulty to some extent. Suggestions are made to it: re-providing of the crime, abolishing the specific usage; and adding property punishment to it, i.e., adding a punishing scope in allusion to the amount of public property being defalcated.