| Embezzlement crime does not only seriously infringe on the incorruption of the public service personnel, but also endangers the social and political stability, and thus is bitterly abhorred by the general public. To severely fight against such crime is the strong desire of the whole national people and constant resolution of the Communist Party and national leaders as well. However, the accurate conviction and proper penalty are the premises of the severe fight against embezzlement crime, and needs a careful investigation into the constitutive elements of embezzlement and the penalty applicable to it. Although the study of embezzlement crime has long been the academic and practical focus of the theoretical circle of the criminal law, and has achieved lots of outcomes, which provides the penalty for crime with theoretical basis, until now, the theoretical circle of the criminal law has still held some suspect points regarding such issues as the scope of subject, objective behaviors, joint crime and perfection of penalty for embezzlement crime, which need further studying. Therefore, the author chooses this topic as the researching object, aiming at providing theoretical reference for the judicial practice of anti-embezzlement through theoretical discussion and suggestion on legislative amendment.Except introduction, this thesis is divided into 6 parts:Part-1 involves a general illustration of embezzlement crime. This part is composed of three sections. The first section illustrates the general situation of the legislation on anti-embezzlement crime in ancient China. The regulations upon embezzlement crime can date back to the Xia Dynasty that existed 4,000 years ago. The earliest written legislation on anti-embezzlement is in the Shang Dynasty. In both Qin Dynasty and Han Dynasty, the legislation on anti-embezzlement was further improved, and the names of crime had been continually increased and gradually perfected. The penalty for embezzlement in the Han Dynasty dose not only involve the embezzlers themselves, but also regulates their children within three generations should not become officials. In Chinese feudal society, laws are most complete in the Tang Dynasty. The Tang Legal Code, serving as a major national law, fixes regulations on punishing embezzlement crime, and sets the sentencing standards, which provides basic standards for punishing embezzlement crime. The legal regulations in the Ming Dynasty are basically similar to that in the Tang Dynasty, but the penalty for embezzlers is server, the means are cruel, and the embezzled articles are strictly traced. The regulations on embezzlement crime in the Qing Dynasty are almost a republication of the laws in the Ming Dynasty, and there are only some small alterations. The second section illustrates the three vital laws on anti-embezzlement crime constituted by the new China sequentially. On Apr. 18, 1952, the Regulations of the People's Republic China on Punishing Embezzlement as a slip law was implemented after being ratified by the Fourteenth Session of the Central People's Government Committee. The embezzlement crime regulated by this law is a comprehensive term, including present embezzlement crime, crime of accepting bribe, etc. The scope of embezzlement crime's subjects, behaviors and objectives are very large, and the taking advantage of one's position is not definitely regulated. The Criminal Law of the People's Republic of China in 1979 is the first criminal law, which was adopted by the Second Session of the Fifth National People's Congress on July 1, 1979 and came into effect on Jan. 1, 1980. Only the Article 155 of Part-5 the Crime of Encroaching on Property in this law regulates an embezzlement crime name. The subjects of embezzlement crime only include the personnel working in state organs and personnel delegated to public service by state organs, enterprises, institutions and people's organizations. The objects of embezzlement crime only include public property. The objective behaviors require taking advantage of one's position. The Criminal Law of the People's Republic of China that came into effect on Oct. 1, 1997 sets an independent chapter for embezzlement crime. There are totally 5 articles of the legislation on embezzlement crime. Article 382 regulates the definition and constitutive elements of embezzlement; Article 383 regulates the application of penalty for embezzlement crime. These two regulations are the standard articles of the legislation on embezzlement crime. The Article 183 Section 2, Article 271 Section 2 and Article 394 respectively regulate three particular constitutive elements of embezzlement crime. As for the constitutive elements of embezzlement, the present law adopts the legislative method of respectively regulating various articles. This legislative technique actually brings many issues for the understanding and application of embezzlement crime. The theoretical circle has continually raise disagreements upon embezzlement crime, and the judicial organs have also continually faced the issues of the application of embezzlement crime that need theoretical interpretation. The third section redefines the definition of embezzlement crime, and amends the definition of embezzlement crime in the Chinese criminal law with reference to the United Nations Convention against Corruption. The definition of embezzlement should be embezzlement crime refers to the public officials'behaviors of utilizing the convenient conditions due to their powers to illegally occupy public or private property in a large amount.Part-2 concerns the conviction for the subjects of embezzlement crime. This part includes three sections. The first section illustrates the intrinsic attribute of the subjects of embezzlement crime. The subjects of embezzlement crime are particular subjects, i.e. public officials. Engaging in public service is the intrinsic attribute of various public officials. The second section defines the scope of the subjects of embezzlement crime. The state personnel includes tow major categories, I. it is the personnel engaging in public service in state organs, who are the standard state personnel; II. It is the personnel engaging in public service in non-state organs, i.e. quasi state personnel. Besides the personnel engaging in public service in the National People's Congress, the state president, the State Council, the Central Military Commission, all local People's Congresses, all local governments, the autonomous organs of the autonomous areas, the people's courts, and procuratorates, the personnel in state organs should also include the personnel engaging in public service in the organizations of the Communist Party at different levels relevant to the state administrative organs at different levels, independent conducting organs in army, institutions with the powers of state administrative management, organs of the Political Consultative Conference and all democratic parties. Quasi state personnel includes the personnel engaging in public service in the corporations, enterprises, institutions, and people's organizations, the personnel who engages in public service in a non-state owned unit due to the assignment of a state owned unit and other personnel who legally engages in public service.Part-3 is on the conviction for the objective behaviors of embezzlement crime. The objective facet of embezzlement crime is represented as the behavior that the performer takes advantage of his position to encroach on, steal, swindle or illegally occupy public property by other means. The behavior comprises such constitutive elements as behavioral condition, behavioral means, and behavioral manner. Taking advantage of one's position is closely related to and cannot be separated from the functions the performer assumes and property within the scope of powers. The connotation should be the convenient conditions caused by taking charge of, managing, and dealing with public property when the performer directly takes advantage of his position. As for the legislative mode of the means of embezzlement crime, the Chinese criminal law adopts such a legislative method that connects the listing manner with the generalizing manner, which dose not only lists such three criminal methods as encroachment, steal, and swindle, but also generally regulates other possible criminal methods by the term of other means. However, there are many theoretical disagreements on understanding and mastering these four criminal means.Part-4 is about the conviction for the objects of embezzlement crime. The objects of embezzlement regulated by present criminal law include the public property, state owned property, the premium of non-state owned insurance companies, property of non-state units, and gifts that should be public. The traditional views deem that the objects of embezzlement crime must be public property. As the modern enterprise system has been further improved, corporation will become the most vital organizing forms of Chinese enterprises. The establishment of corporation makes it impossible to unify the subjects of the investor's ownership of assets and the subjects of the legal person's property right. The corporate property, according to legal regulations, is the proper right of the legal person. The state, as one of the corporate shareholders, has on longer owned the ownership of its investment, and only owns the rights for investors. According to the regulations of the Article 91 in the criminal law, it is obvious that such kind of proper right for the legal person does not belong to the category of public property. The premium of the non-state owned insurance company is the object of embezzlement crime committed by the personnel who engages in public service in a non-state owned insurance company due to the assignment of a state owned insurance company. The Article 271 Section 2, in the criminal law as well regulates that if the personnel, who engages in public service in a non-state owned unit due to the assignment of a state owned unit, takes advantage of their position, they will be punished as committing embezzlement crime. These non-state owned units are the mixed ownership economic organizations with shares invested by public property. The construction of their property includes shares invested by private property. Therefore, it can be seen that the objects of embezzlement crime are included in private property.Party-5 is the conviction for joint embezzlement crime. The issues of the joint embezzlement crime include the joint embezzlement committed subjects with the same identification and that with different identification. On condition that non-public officials and public officials take advantage of their position in order to jointly steal, swindle, or encroach on the public property, the embezzlement crime is committed. Non-public officials can be the criminals who committees embezzlement crime. If a person without identification and that with identification make use of the convenience caused by powers of the person with identification, this behavior's nature should be determined by a person with particular identification. When the subjects of embezzlement crime and the subjects of the crime of taking advantage of one's position illegally take possession of public property together, if they only take advantage of the state public officials'position, they will be convicted as joint embezzlement crime. If the subjects of the crime of taking advantage of one's position only take advantage of their position, they will be convicted as joint embezzlement crime. However, if they only take advantage of their position instead of other position, they will be convicted respectively according to their own identification. The person identified as the subject of embezzlement crime is convicted according to embezzlement crime, and the person identified as the subject of the crime of taking advantage of his position is convicted according to the crime of taking advantage of his position. There is no joint crime committed by these two parties. In the event of illegally taking possession of public property together, the criminal subjects do not only take advantage of their own poison but also others'position, and will be convicted according to the principle for imaginative joinder of offenses. If the behavior of a subject at the same time commits two crimes, both joint embezzlement crime and the crime of taking advantage of his position, he will be convicted and punished according to the principle for imaginative joinder of offenses. The conviction for the amount of joint embezzlement crime shall be sentenced according to the amount of the embezzlement committed by all joinders.Part-4 concerns the perfection of penalty for embezzlement crime. Fine penalty and qualification penalty should be established, freedom penalty should be properly prolonged, and the death penalty should be abolished.Finally, the conclusion part proposes some suggestions on amending embezzlement crime form the perspective of legislation.
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