The Analysis Of Several Questions About The Embezzlement

As the protective method of the public and private property, the setting of embezzlement plays an important part during the process of the rule of law. As a criminal conduct, embezzlement has a long history, and it has turned out since Tang Dynasty, but as an independent crime, it only exists in the 1997 Criminal Law. The ancient embezzlement has already realized modernization, and has met the requirements of society. However, for embezzlement is a new crime, it still exists the process of searching and studying, and we are faced many questions to consider: people are defined by the cause of embezzlement; they still have some misunderstanding about the object of the crime; and the noumenon of the conduct is behavior or not; and if the real estate or invisible estate can be the criminal target of embezzlement or not, and so on. Nowadays, our society is looking forward to redefining the concept of embezzlement. They are two reasons for such thing, one is that people have begun to safeguard their rights and have gotten rid of mentality of disliking litigation; the other is so many shocking events about infringing up on the public and private property rights can not be punished by the weapon of Criminal Law, which cause even disastrous consequences for our society and country. All about this let us think about our future. In order to allay the complaint coming from society and removing the danger from society, redefining the concept of embezzlement should be taken into schedule. For this, this thesis is been written according to two items: convicting and penalizing, for the embezzlement in our criminal code can face the complicated society life deliberately. According to the above, I arrange the framework of the thesis as follows:The whole thesis can be divided into four parts:The first part, it talks about the being of this crime from the point of view of the criminal structure. It concludes that the criminal object of this crime is others'property rights, and it contains both public and private. The criminal targets include others'property taken care of,others'property forgotten and hidden, which the text would analyze one by one. The others' property refers to occupy in the meaning of criminal law, which is both legal and facto. As if it is legal or facto, it must have its premise of the trust, and this kind of trust ignores written contract or not, it only requires the facto trust relation according to the ordinary principal. As for the others'property forgotten, the author believes it is the same with the property hidden, and there's no meaning to differentiate. The property hidden should be include uncertain and curtain, and on this point, the conductor must unknown the fact, otherwise, it would be others crime. The objective item of embezzlement should be unacted. The text talk about the meaning of"occupy","refuse to hand over","refuse to return"in the practice of justice. The subjective item of this crime is deliberate intention, and its conductor should be common people.The second part is about the differences between embezzlement and other crimes. This part mainly discusses about difference from steal and swindle. The important point to differ them is the property being holded by whom, before it is illegally embezzled. If it is holded by the conductor legally, it is embezzlement; otherwise, and the conductor occupies the property by the means of steal and swindle, it should be steal or swindle.The third part is about the cognizance of the committed crime and uncommitted crime of embezzlement. The author believes that there is not room for the uncommitted crime as for embezzlement. Because the objective aspect is to repudiate the duty of returning other people's large property, so it belongs to action commission. The embarking is the time of refusing to return the property, so as soon as conductor embarks, he or she would complete this crime. In addition, if the amount misses the standard, it can not be a crime, even more the uncommitted crime.The fourth part discusses about the punishment and the form of private prosecution of embezzlement. At first, the author talked about the understanding about"the large amount"; and the author believe that the clause of 270, 2 item only has one punishment standard. Because the two items have different criminal target, so they should have different punishment. Embezzling the trust property, not only invade others'property rights, but also invade the trust relation. It will cause the crisis of social trust, and will violate the economical order which the ruler can benefit from. So its harmfulness is more serious. At last, this thesis discusses the rationality of the private prosecution. The private prosecution repels the intervention of public security bureau, so the real owner of the property forgotten or hidden is difficult to the prosecution process. So the author suggests add content to the third item: if the embezzlement case need scout, the public security bureau can intervene by the applying of the victim, and the case which influences the society badly can not be suite to the private prosecution.Embezzlement is a crime which is worthy to search fatherly. For the common theory of criminal law and the justice, the realism and people'wishes all require legislators to redefine the worth of embezzlement. The author thinks that redefining the concept of this crime needs the resultant force of legislation renovate and justice thought renovate, which would make us work harder and harder.In addition, this thesis contains some points of my own which are based on my simplistic knowledge structure, hoping to discuss with readers.