Researching Some Issues Of Embezzlement

Current criminal laws revised in 1997 add embezzlement. As a result of short legislation and judicial practice, it appears many understandabilities concerning with accusation of conversion. Issues on embezzlement are more and mixed in theory and practice, which influences judicial department's affirmation on crime heavily. For this reason, from the circle of criminal laws theory and judicial practice this paper jointly concerns on embezzlement's targets with more disagreements, accomplished offense and the attempted ones, distinction among embezzlement, stealing, and other criminal activities. The short, improvement and other puzzling problems suitable for laws of our embezzlement clauses are analyzed and proofed thoroughly and carefully, which provides some reference for practical operation.The paper consists of introduction, body and conclusion. Main content are as followed:The 1st part is introduction. This part introduces developments and current situation of our embezzlement and the aim of this thesis.The 2nd part is the body including 5 aspects:Ⅰ. Introduction of Embezzlement. For embezzlement, penal code of each country regulates differently. Definitions of embezzlement in each country are different. This part firstly introduces our scholars' several typical definitions of embezzlement concepts and evaluates them. The author indicates satisfactory opinions and proofs them. The expression of author's satisfying concepts is Embezzlement refers to activities that someone takes others' property he keeps, others' mislaid property, buried things as his with the purpose of illegal occupation, with big amount and rejecting to return or hand out. Such expression both complies with regulation of criminal laws and shows nature of embezzlements. Secondly, the writer divides embezzlement into following classifications: First level, based on different reasons of actor's occupation on embezzling target, divides embezzlement into stored article embezzlement and without occupation thing embezzlement. Based on the first level second level further divides without occupation thing embezzlement into mislaid property embezzlement and buried things embezzlement.Ⅱ. The target of crime of embezzlement. According to the 270th rule of Criminal Laws, target of embezzlement composes three types: one is actor keeping property for other; two is mislaid property of others; three is buried thing. Judicial practice circle and theory circle has different cognition on these three types of embezzling target with wide opinions and big dispute. This part proofs the three respectively.(Ⅰ) Keeping property for other. I. It is very important that how to understand In trust in the 270th clause of Criminal Laws. In trust determines the cognition of embezzlement target directly, which is the essential premise of building embezzlement and also one of the distinguishing features from other property crime. Correct understanding of its definition is good for us to accurately cognize embezzlement, but scholars has various and different understandings on meaning of In Trust. The author illustrates In Trust in following aspects, one is the cognition on In Trust, it should understand In Trust regarding to the relation of property and actor not to understand narrowly based on the literal meaning. Two is the base of In Trust, in real society, legal reasons or bases of keeping property for others has bases on law and truth, and various. There are following types of judicial practice:①Entrusting relation.②Leasehold relation.③Guarantee relation.④Pawning relation.⑤Borrowing relation.⑥No reason management. The author considers that unjustified enrichment can't become the base of In Trust. Three is In Trust just limits in legal keeping. 2 concerns several problem of others' property. According to different standards, others' property can be divided into different classifications. Theory often has divergence on whether some property can become the embezzling target of embezzlement. For if landed estate can become embezzling target of this crime, our country's usual saying thinks property here refers to not movable property but land estate. I also agree with such opinion. The writer also thinks that illegal property—either criminal property or plunder can be embezzling target. Meanwhile, the author proofs whether intangible property, gene, etc become embezzling target.(Ⅱ) Mislaid property of others. There are nature differences between mislaid property and missing property, which is the bigger issuing dispute between criminal laws theory and judicial practice and the important mark of judging embezzling activities. Undeniable, there are significant distinctions between mislaid property and missing property. So, as the basis of distinguishing standards, mind-set and controlling property ability of the owner are unreasonable frequently. Discuss of Doctor Chen Xingliang is rather refined, but his findings need to be discussed. We think that judging property whether belonging to mislaid property should comply with the nature of leasehold. Truly distinguish the two in natures; besides the out of controlling property degree of owner, it also should focus on considering whether property had been kept by others yet and the condition of picker's understanding on out of controlling property. Mislaid refers to private property that should be taken away by owner but because of inattention left in taxi, restaurant, bank or business hall of post office and other specific places.(Ⅲ) Buried property of others. The author holds that it necessary to clear the following problems: 1.the specific meaning of buried. 2. Buried property of embezzling target is different from buried property in civil law.3.Buried property must have the basic characteristics of leasehold property.Ⅲ. Accomplished and attempted of embezzlement. According to the 270th rule of Criminal Laws, accomplished of embezzlement should had the following essentials: (1) what actor embezzles are property keeping for others or legal mislaid property. (2) Actor has the purpose of holding others' property illegally.(3) Actor has the action of turn keeping into holding, such as consume, present, sell, etc. (4) Actor builds embezzlement to others' ownership. (5) Actor is required to return and rejects to return. It actor just has the intention and action of illegal hold, but he returns them as the owner required to return timely. Such condition doesn't build embezzlement not even to criminal accomplished. It can be seen that intention of our legislator is strictly controlling the punishment purpose to this crime. Hence, whether this crime established accomplished not simply based on actor's intention to illegal hold by language or action. The author holds that accomplished of embezzlement generally takes actor rejecting to return and property loss brought to owner as the standard.Ⅳ. Judicial cognition of embezzlement. In this part, the author systematically discusses definition between embezzlement and unjust enrichment, banditry, crime of fraud, position embezzlement and clears the differences between embezzlement and related crime.Ⅴ. Legislation defect and perfection suggestion of embezzlement. The author thinks that there are defects in classifying criminal type of embezzlement, criterion for imposing penalty and information forms and arises more reasonable perfection suggestion.The 3rd part is the conclusion. It summarizes the whole paper and the hope to benefit theory analysis of embezzlement and judicial practice.