On The Commit Composition And Judicial Identification For The Commit Of Duty Occupation

In the thesis, it is expounded on the commit composition and judicial identification for the commit of duty occupation, and raised legislative suggestions to perfect it.In the part of introduction, it is stated on the concept of commit of duty occupation, namely, it refers to the actions of the staff in the companies, enterprises or other units but not state functionary of utilizing their convenience of work to occupy large-amount properties belonging to their units by means of embezzling, stealing and cheating or some other illegal manners with the purpose of illegal possession.In the first part, it is discussed on the commit composition of commit of duty occupation composition. The object of commit of duty occupation is the ownership of property which belongs to the companies, enterprises or other units and the concrete objects of commit of duty occupation are the properties belonging to the companies, enterprises or other units of criminals; however, the estate, the property of state-owned and the intellectual products belonging to invisible substance can't be the objects of commit of duty occupation, and the invisible energy sources can be the objects of commit of duty occupation including electric power, gas, natural gas and heat energy. Commit of duty occupation objectively is shown as the actions of the staff in the companies, enterprises or other units but not state functionary of utilizing their convenience of work to illegally occupy large-amount properties belonging to their units, that is to say the actions should possess the following three conditions: firstly, the people done these actions utilize their convenience of work; secondly, they illegally occupy the properties belonging to their units; thirdly, the amount is large. The subjects for commit of duty occupation are the staff in the companies, enterprises or the staffs in other units, and there are differences in the defining of the concrete scope of units and staffs in the companies, enterprises or the staffs in other units in judicial practice. The subjects of commit of duty occupation are special, which should possess the following characteristics::firstly, they must be the staff in the non-state-owned companies, enterprises and other units but not state functionary; secondly, they must be the staff in the companies, enterprises or other units but not state functionary; thirdly, they should be the staff who possess certain positions in the companies, enterprises or other units which are not state-owned; The commit of duty occupation possesses the characteristic of doing it directly on purpose since the people who have done the actions occupied the properties although they knew that these belonged to their units, and blame and the indirectly intended actions can't constitute this crime.In the second part, it is about the judicial identification of commit of duty occupation. Firstly, it has discussed on the demarcations between crime and non-crime, and the author believes that the standard of distinguish the commit of duty occupation from common action of occupying is whether the amount is large; moreover, the occupation resulted from industrial dispute shouldn't be handled as the occupation by virtue of duty and the action of long-term borrowing properties belonging to units without giving back should be handled carefully and seriously. Secondly, the author discusses the limit between the commit of duty occupation and similar criminals, for instance, the limit between the commit of duty occupation and the commit of corruption, the commit of occupation, the commit of misappropriating funds, the commit of bribery of the staff in the companies, enterprises, the commit of stealing and the commit of cheating. Thirdly, the author discusses the characteristic of attempted commit of duty occupation, and attempted commit of duty occupation refers to the unaccomplished criminal of people since they can't illegally occupy the properties belonging to their units because of some impersonal reasons although they began. The attempted commit of duty occupation can be divided into the one carried out completely and the one carried out partly according to the standard of whether the action of occupation is carried out completely and it can be divided into the one with the possibility of success and the one without the possibility of success according to the standard of whether commit of duty occupation can be carried out. Fourthly, the author discusses some concrete problems which is difficult to hold in judicial practice concerning the united crime in the commit of duty occupation, for instance, as for the crime of occupation by virtue of duty with mixed subjects, the impersonal key element for cognizing whether the actions of these people constitute commit of duty occupation is whether they utilize their convenience of work. The unified criminals of commit of duty occupation should be sentenced and measured punishment basing on the amount of illegal gains, and the punishments on unified criminals are determined by their positions and roles in this crime, namely, the criminal who plays more important role should be punished more seriously than the criminal who plays less important role and coerced or induced offender; meanwhile, the amount of illegal gains they got is an important standard of measuring punishment on unified criminals in commit of duty occupation. Fifthly, the author discusses the punishment on the commit of duty occupation, and according to Article 271, Section 1 of Chinese Criminal Law, there are two levels concerning the punishment according to law of commit of duty occupation, namely, the criminals with large-amount illegal gains are to be sentenced to not more than five years of fixed-term imprisonment or criminal detention and the criminals with huge-amount illegal gains are to be sentenced to more than five years of fixed-term imprisonment and dispossess their property. Criminal law takes the amount of illegal gains not only as important standard of whether the commit of duty occupation is constitutes but also important basis of punishments. As for the punishments on the commit of duty occupation, we should insists on taking legal amount of occupations as important basis, and shouldn't neglect the effects of other factors on measurement in order to carry out the principle of the punishment should accord with the crime, so as to apply scientific punishments on the commit of duty occupation.In the third part, it is put forward two proposals to perfect commit of duty occupation legislatively. First of all, the standards of criminating and measuring punishment concerning commit of duty occupation should be defined further. According to Chinese Criminal Law, whether the property of units occupied illegally is great is one of necessary conditions for constituting commit of duty occupation. The factors which determine and reflect the social harm of criminal include important ones and secondary ones, which have large effects on the social harm of criminal, so the amount of property involved in the crime should not be considered as only and absolute standard of determining and affecting the sentence and measure punishment; moreover, other factors which affect the sentence and measure punishment should be considered carefully. The author suggests that the NPC and its Standing Committee, the Supreme People's Court or the Supreme People's Procurator ate should issue the unified standard concerning the amount involved in the commit of duty occupation, define the important effects of other factors on sentence and measure punishment of the commit of duty occupation and should pay certain attention to other factors affecting sentence and measurement while focus on the effects of amount of illegal gains. Secondly, the punishment according to law of commit of duty occupation should be corrected further, and there are two levels concerning the punishment according to law of commit of duty occupation in Chinese Criminal Law, namely, the criminals with large-amount illegal gains are to be sentenced to less than five years of fixed-term imprisonment or criminal detention and the criminals with huge-amount illegal gains are to be sentenced to more than five years of fixed-term imprisonment and dispossess their property. As for regulation, the author believes that there are three problem as least, firstly, this regulation first is opposed to the principles of the punishment should accord with the crime; secondly, this regulation doesn't embody the equal protection of Criminal Law to properties with different ownership; thirdly, it doesn't emphasize the application of punishment concerning property. Aiming at the problems concerning the punishment according to law of commit of duty occupation in Chinese Criminal Law, the author puts forward the following imaginations, firstly, to bring up the punishment according to law concerning the commit of duty occupation to life imprisonment; secondly, the criminals with large-amount illegal gains should be fined only or with other punishment; thirdly, the criminals with huge-amount illegal gains should be fined with other punishment but not just be dispossessed of property.