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Study On The Mens Rea Transformation After Misappropriation Of Public Funds

Posted on:2009-10-28Degree:MasterType:Thesis
Country:ChinaCandidate:L Z ZhuFull Text:PDF
GTID:2166360245490316Subject:Criminal Law
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Although the mens rea transformation after misappropriation of public funds is a universal existence phenomenon, the research on it in the theoretical field is extremely poor and there exist controversies about the nature of it in judicial practice.The mens rea transformation can be comprehended in three senses: transformation of culpability form, transformation of criminal purpose and transformation of criminal intent. The mens rea transformation after misappropriation of public funds is that of criminal intent, namely from misappropriation intent to possession intent. It is different from new mens rea after misappropriation of the public funds, and it is also different from transformation of criminal purpose after misappropriation of the public funds.There are two ways of identifying the mens rea transformation: direct identification and criminal presumption. The direct identification is based on the defendant's confession. But generally speaking, in judicial practice the defendant will not confess, even will withdraw a confession. Therefore it is necessary to make use of the criminal presumption. The criminal presumption is a process of achieving conclusion based on the clear foundation fact. There are two essential factors in utilizing the criminal presumption, namely experience and logic. There are many foundation facts which can be used to presume the mens rea transformation after misappropriation of public funds, such as absconding with the funds misappropriated, dispelling the financial certificates after misappropriating the funds, shirking the responsibility of property management after misappropriating the funds, and squandering the funds misappropriated without the repayments ability.There are the viewpoint of"transformed crime"theoretically and the method of"the combined punishment for several offenses"in practice about the nature of the mens rea transformation after misappropriation of public funds. The transformed crime ought to have legal determinal characteristic and it should be based on criminal legal provision but not judiciary explanation, therefore the mens rea transformation after misappropriation of public funds is not the transformed crime. Moreover, the mens rea transformation after misappropriation of public funds is not several crimes but single crime. Since the mens rea transformation after misappropriation of public funds can not be explained by various specific forms of crime such as one crime of essence, one legal crime and one determining crime, it should be defined as the transformed corruption crime.
Keywords/Search Tags:misappropriation of the public funds, mens rea, transformation, presumption
PDF Full Text Request
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