The Verification Of The Crime Of Embezzlement

This essay, applying criminal law theory and adopting some civil law study fruit on the basis of dialectical materialism and historical materialism, carries out systematic theory questing on the crime of embezzlement. The essay's definition is to try to tutor criminal administration of justice and give perfection proposal to the deficiency of legislation of the crime of embezzlement, from the analysis of its legislation history,its essence and its subjective and objective characters.Section one: we introduce the development situation of the crime of embezzlement at first, and think that it stems from Roman Law, it is the result of commodity economy development. Furthermore, it analyzes the legislation of the crime of embezzlement all over of the world and thinks it can be divided to eight legislation model. In addition, I narrate the development situation of the crime of embezzlement in our country. it is widely thought that the legislation with accusation and character of the crime of embezzlement and punishment somebody for his crime have been existed in the Warring States Period, but the offender was punished in the name of crime of theft. The modern meaning crime of embezzlement come into being through hundreds and thousands years development, our country's new criminal law that enacted in nineteen ninety seven and Taiwan region'criminal law both stipulate it. The focus of this chapter is the analysis of the current situation, the author thinks that our current legislation of the crime of embezzlement; on the one hand, it is not in line with scientific legislation principle; on the other hand, it is not in line with the principle of suiting punishment to crime.Section two: This thesis analyzes the objective character of the crime of embezzlement, which is the focus of this thesis. Part one is possession. Possession is that the behavior have factual or lawful dominant to property, it only require that the behavior have the dominant to property instead of holding the property factually. The concept of possession in criminal law is wider than the concept of possession in civil law; it not only concludes factual possession but also concludes possession of the general people's social notion. Some question about possession can be easily resolved on the basis of such notion. Firstly, the essence of possession is factual client credit, but its premise does request no illegal possession; Secondly, the notion of possession is general, abstract notion. On the dual control theory and unity principle of subject and object foundation, the possession in criminal law requests object dominant fact and subject dominant opinion, but the subject dominant opinion is general, abstract opinion not separate, specific opinion. Thirdly, according to the essence of possession and the character of unjust enrichment and voluntary service, both unjust enrichment and voluntary service can not be the premise of the crime of embezzlement. Part two is acts of conversion. Acts of conversion conclude keeping behavior, illegal ownership and refusing to return in Chinese Criminal Law. If it's explained from the perspective of statutes, keeping behavior should be entrusted by other people. But that will lead to defects from the rational perspective, it not only causes the coverage of the crime of embezzlement too narrow but also goes against the protection of property, therefore"keep"should be replaced by"possess"in the future legal modification. Converse is that someone owns the property illegally instead of possession, which is the essence of the crime of embezzlement. There are arguments about the character of converse: obtaining theory and exceeding authority theory, but the coverage of converse is wider according to exceeding authority theory than obtaining theory, it will cause verdict according to objective respect and don't conform to light punishment tendency, so it is rational to adopt obtaining theory. The author think"refusing to return"is just emphasis or complement to"own the property illegally", therefore it is not a constitutive requirement respect of the crime of embezzlement. The time boundary line of refusing to return is not defined clearly in the theory. Why the Criminal Law stipulate"refusing to return"? Its purpose is to emphasize and restrict the coverage of the crime of embezzlement in degree, which indicates light punishment tendency of Criminal Law, from the analysis of legal intention. But which is the time boundary line of refusing to return is a legislative question. When the law has no definite time boundary line, it is rational to define it by the standard of filing a case from the perspective of light punishment tendency and the offenders. Part three is the target of the crime of embezzlement. According to the law, the targets of the crime of embezzlement are the keeping property, forgetting things and hidden things, but this stipulation is too narrow, whether illegal keeping things, kind things are the targets of the crime of embezzlement or not? How to distinguish forgetting things and lost things? There are no agreements among people about these questions. Are illegal keeping things the targets of the crime of embezzlement? There are positive theory, passive theory and compromise theory, I think positive theory is rational from the perspective of difference of Criminal Law and Civil Law and the character of the crime of embezzlement. There is no doubt that kind things can be the targets of the crime of embezzlement, and it constitutes the crime of embezzlement when the ownership diverted. Owing to the imperfect law, the relation of forgetting things and lost things is confusion. According to present situation, there are differences between the two, furthermore, if someone converse the lost things, he will be innocent according to the principle of a legally prescribed punishment for a specified crime.Section three is the subjective character of the crime of embezzlement. There is no doubt that the subjective respect is direct intention, but whether the purpose of illegal dominant is part of the content of intention of the crime of embezzlement or an unattached subjective respect? There is no agreement among people concerning this question, but it is rational for it as one part of the content of intention of the crime of embezzlement according to Chinese constitution theory of crime. The subject of a crime is special subject, that is, the subject of behavior must possess other people's property.Section four discusses the deficiency of the legislation of crime of embezzlement, the author think it should be improved from five respects: Firstly, term two hundred and seventy of Criminal Law should be divided to two terms, and the crime of embezzlement should be divided to general crime of embezzlement and crime of separated keeping things embezzlement. Secondly,"keep"should be replaced by"possess"in the future legal modification. Thirdly, the time boundary line of refusing to return should be defined clearly by the standard of filing a case. Fourthly, the legal skill should be improved, the second part of term two hundred and seventy of Criminal Law should include lost property, drifting object and the object of voluntary service situation and so on. Last but not least, according to the essence of crime of embezzlement, general crime of embezzlement should be a private prosecution form, but the crime of separated keeping things embezzlement should be dealt by public prosecution.