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Study Of Several Objective Elements In Embezzlement Of Public Funds

Posted on:2008-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y T ChenFull Text:PDF
GTID:2166360215452512Subject:Criminal Law
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Embezzlement is a common form of crime in judicial practice. In recent years, however, along with the deepening of the reform, the development of the economy, the trend of the crime has been upwards, and most of them were serious cases which have wider influences and bad consequences around the society. Although there has been more than ten years about the legislative history of our country's Criminal Law, but it is more abstract and general, there still have several arguments in theories field and judicatory. Concrete performance is: While covering and involving towards embezzlement crime in three rules("Criminal Law"a section 2 of Article 185 , a section 2 of Article 272 and Article 384) and related lawmaking, judicatory explanation certain complexity which appears in the object of this crime. Criminal law is not only the objective important item that personal usage designates as embezzlement, but also designates as objective important item of embezzlement to three kinds of concrete uses. This kind of provision lacks the maneuverability in the fulfillment, and causes confusion in law enforcement. And still because the objective form of embezzlement crime is limited by the public funds only, it will not be pursued in the judicatory practice that embezzlers make use of the job to transfer the behavior of other public amount of moneys wealth and properties, because of"no expressly no crime,no expressly no punishment". Therefore, this behavior will be stirred up and spread.According to the problems above, the writer carries on the comprehension towards the crime-object"public funds"and sum up eight kinds of situations of embezzlement. Their manifestations are varied, but all these behaviors must be punished by embezzlement crime. During the course of researching, which to define the target of embezzlement, the writer also try to study and comparative the legislation of criminal law abroad. Currently, most foreign countries haven't the same offense as China has, but this does not mean that foreign countries are not going to punish this kind of behaviors. In foreign criminal legislation, most of them have the similar legislation about this kind of behaviors. First of all, according to international anti-corruption legal documents,"Anti-corruption Convention of United Nations"Article 17 states that the"public officers misappropriated property."Then, from the foreign criminal legislation, foreign legislation on the crime of embezzlement of public property is the following situations: Some countries criminalize the acts of embezzlement of public property, but they are different in offense and content with our country. Such as Article 223 of criminal law of Romania; Some countries do not have separate criminal offense, but in these countries, misappropriation of public property was included in the general crime of corruption or theft by the others crimes, such like Italy, Switzerland, India; Some countries do not have separate offense and not diverted to other criminal acts, but they punish such acts through the theory and jurisprudence, such as Japan.Therefore, it is not difficult to understand that the foreign criminal legislation on diversion target is different, but they treat the"public funds"and"public goods"in the same way. Conversely, according to China's current criminal legislation, it will be limited into"public funds"and"specific sources". Based on the current situation and development, and foreign successful experiences of crime of embezzlement, the author suggested that we should change"embezzlement"into"the crime of misappropriation". In this way, the target of embezzlement will be expanded, and make the internal coordination of criminal law and crime-balance realized.The second part in this article is the researching about embezzlement public funds"for personal use". Because of the"misappropriation of public funds for personal use"is a necessary element constitutes embezzlement, and it is also the basic characteristics of the offense. In judicial practice, there will be kind of diversions of public funds used by units, as well as the complexity of embezzlement as individuals. So, how to understand totally and correctly about the essential meaning and legislative interpretation of the"misappropriation of public funds for personal use", which has been very real legal significance of judicial practice. The Supreme People's Court on September 18, 2001 passed the"on the issue of how to identify and diverted public funds for personal use Explanations". The interpretation specified that the civil servant took advantage of his position to facilitate the embezzlement of public funds"for personal use"including three conditions: (1)Diverted public funds for oneself, relatives, or other nature person use; (2)In an individual's name, does not have legal status to lend money to the private-owned enterprises, private partnerships; (3)To pursue personal interests in the name lent to other units. The Ninth National People's Congress standing Committee on April 28, 2002 adopted the"Criminal 380th Article 1 of interpretation"provides that"Embezzlement of public funds for personal use"including:"(1) Use public funds for himself, relatives or other nature use; (2) In the name of public funds for personal use of the other units; (3) Personal decision in the name of the unit to other units for use of public funds, and for personal benefits."And the third misappropriation of public funds"for personal use"of"2002 explanation"that fixed the legislation meaning on the"2001explanation". In view of the interpretation of legislation, for it's shortcomings, the writer propose to change misappropriation of public funds"for personal use"to misappropriation of public funds"for personal use illegal"or delete the objective elements of"for personal use", thus, put the large number of cases of embezzlement of public funds in final practice into adjustment of criminal law.In the third part of this paper, the author explored the issue of the use of public funds. In January 1988, NPC Standing Committee"on the punishment of crimes of corruption and bribery crimes, the supplementary provision"and the 1997 Regulation No. 384 of the"Criminal Law"the embezzlement, have not defined"illegal activities"in the meaning, and the explanation of"The Supreme People's Court and Supreme People's Procuratorate"is the relevant judicial interpretations also be loosely defined. Not only that, literally, exploitation and illegal activities of the existence of certain cross and coincidence relations. The author researched that the scope, identifying, and defining of the exploitation and illegal activities. I think it will be deleted from the provisions on the use of public funds. Whether the perpetrator is a misappropriation of public funds after what would constitute embezzlement. If the perpetrator after the embezzlement activities constitutions a criminal offense, we should according to the new offense commit crimes of graft and embezzlement of public funds. If public funds are not enough to achieve the criminal conduct of illegal activities, then in this condition the extent can be imposed for the crime of embezzlement of public funds as an aggravating circumstance to be considered, and not take this kind of acts as an objective element. In this way, we can solve the problem about distinction between guilty and not guilty.
Keywords/Search Tags:Embezzlement
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