Several Issues On Crime Of Embezzlement Of Public Funds

Though cases of Crime of Embezzlement of Public Funds (CEPF) occur frequently in the judicial practice, there are still many a problem on defining such cases. This paper intends to discuss primarily the subject, object, joint crime offenses, transformed crime and legislation improvement of CEPF.The subject of CEPF can only be the state personnel, except which, any other work unit, natural person, including the staff of collective economy organizations and other persons dealing and managing public properties, can not be the subject of CEPF."Those who are appointed to execute public affairs in non-state-owned units"can be the subject of CEPF, while"those who are appointed to manage the state-owned assets"can not be the subject of CEPF."The staff of the state-owned financial institutions"can not be the unattached subject of CEPF, but"those who are appointed to execute the public affairs in the state-owned financial institutions"can.CEPF can be divided into the typical CEPF and the atypical CEPF, therefore, the subject of the CEPF should be categorized as the subject of the typical CEPF and the atypical CEPF. The subject of the typical CEPF should be public funds, and the subject of the atypical CEPF includes the specific properties and funds, non-state-owned funds and funds of the non-state-owned financial institutions, and the client's funds.The joint crime of CEPF consists of two types, i) internal collusion and ii) internal and external collusion. The accomplice of CEPF is usually made up of the embezzler and the user, but the third person, apart from the emzebbler and the user, if he abets or helps the embezzler to embezzle the public funds, can also be the accomplice of CEPF.The important criterion for defining the transformation of criminal pattern is to investigate whether the doer's subjective intention has tranformed or not. Three conditions can ascertain that CEPF has transformed into the crime of corruption, i) the doer absconds with the embezzled public funds, ii) the doer makes the embezzled public funds not reflected in the financial accounts, and iii) there is evidence that the doer is able to return the embezzled public funds but he refuses to do so.The legislation of CEPF in China has some defects, therefore, it has to be improved in the following five aspects, i) the public properties should be inclueded in the criminal object of CEPF, ii) the work unit should be included in the crimincal subject of CEPF, iii) the regulation that the specific use of the embezzled public funds should be listed after the public funds being embezzled should be cancelled, iv) the fine penalty and forfeiture of property should be added, and v) CEPF should be revised as the Crime of Embezzlement of Public Properties (CEPP).