The Study Of The Crime Of Embezzlement

The crime of embezzlement is a new crime name which was added in the new revision criminal law of our country in 1997, and this additional crime made up the insufficiency and defect in our original criminal legislation regarding to the behavior of embezzlement, which enable our country's criminal legislation even more scientific and consummate. Hence it provides the new legal basis to punish the criminality of embezzlement for the judicial organs. And it is extremely significant to strengthen the protection of public and private property rights in our country. But because we are insufficient in the legislation experience of the embezzlement, and the provision of the embezzlement is very broad and lacks the corresponding legislation explanation and the judicial interpretation to the correlation concept, there are big differences in the understanding on the embezzlement. In the last few years, there are some progresses on the research to the embezzlement between the scholars. Although they have some dispute regarding some questions, they gradually achieve the mutual recognition. But they still have a bigger difference on some questions. In order to strengthen the prevention and the punishment of the embezzlement, the author of this article tries to do the further research and discussion of the embezzlement according to the stipulation of our country criminal law and referring to the crime the legislation stipulation in the Chinese and foreign criminal law as well as our country judicial practice. The study is also on the basis of the research achievement of the domestic and foreign scholars to the embezzlement.The paper is divided into three parts:Part one: introduction. In this part, the author briefly introduces the production, the development and the society affects of the embezzlement, as well as discusses the great significance of establishing the crime of embezzlement, and points out the writing intention of this article.Part two: the main part. This part is specifically divided into six parts:(1) The legislation outline of the embezzlement. In this part the author mainly discusses the origin of the embezzlement and the legislation conditions of Chinese ancient times and overseas, as well as the legislation background of Chinese present criminal law about the embezzlement.(2) The concept and the constitution of the embezzlement. This part is key point of this article. The author makes an exhaustive analysis and discussion to the embezzlement on concept and the constitution in this part, especially to the comparatively major dispute problem of the embezzlement on the current criminal law theory. For example: the meaning of the replaced storage; the meaning expression way and the object of refusing to return or hand over; the recognizing of the time to refuse returns or hand over; the understanding of objects of the other people belongings, the forgotten things and the buried things of the crime and so on. The author has done the key research and the discussion, and proposes own understanding and the view about these things.(3) The determination of the embezzlement. In this part the author mainly discusses the boundary between the crime and the non- crime, this crime and the other crime. He also discusses whether there is the attempted shape on the crime.(4) The penalty of the embezzlement and the lawsuit form. First the author discusses how to correctly apply the penalty provision in the criminal law about the embezzlement in this part, and then the author discusses the lawsuit form of the embezzlement.(5) The legislation consummation of the embezzlement. In this part the author puts up some legislation suggestions to the legislation flaws of the present criminal law on the embezzlement.Part three: Conclusion. In this part the author makes brief summary of the important viewpoints to this article, and then points out the intention of this article .In the end the author gives out the theoretic and the practical significance of the research of the embezzlement.