Studies On The Difficult Problems On The Crime Of Embezzlement Of Capital

Capital embezzlement is one of the crimes that involve personal property. With the crime, a good number of controversial issues exist in both theories of law and judicatory practices. On June 13,2006, the Official Reply ordained by the Supreme People's Court regulates that "for individual use or loaning to others" refer to one's misappropriation of funds from his unit either for his own use or for the use of other natural persons, or, to one's misappropriation of funds from his unit and loaning them to other natural persons and other units, in his own name."For individual use" does not juxtapose "loaning to others," rather it contains "loaning to others." Article 272 in Criminal Law that regulates "for individual use or loaning to others" is not a renovation of Article 384 that regulates "for individual use," rather it is a clarification of the latter Article. Such an understanding is supported by the judicatory explanation to the crime of capital embezzlement specified in Article 384. If the misappropriated funds are not repaid, consequences of the embezzlement are decided by concrete conditions of the case. If the misappropriated funds are unable to be repaid because the repayment is beyond the capacity of the embezzler, the embezzler is to be convicted of the crime of capital embezzlement with aggravated punishment, according to the principles of legislative intention, and of suiting punishment to crime. If the embezzler does not want to repay the amount, his motive should not be equaled with "intent of illegal possession," we should consider his other performances in the case to see whether he has committed professional embezzlement.In the case of multiple misappropriations which causes difficulty for calculation of the amount, performances of misappropriation should in the first place be classified by their purposes under the categories of "failing to return the misappropriated amount on time," "misappropriating funds to make profits," and "misappropriating funds to conduct illegal activities." At the same time, according to the relationship between the single performances within multiple misappropriations, independent performances of misappropriation should be further distinguished from related performances. Based on the above classifications and distinctions, analysis on multiple misappropriations is illustrated with the following histogram. The limits of the axis that shows the amounts of misappropriation are set from 10,000 Yuan to 30,000 Yuan /5,000 Yuan to 20,000 Yuan; the limits of the axis that shows the time of misappropriation are 3 months. Another axis shows three types of misappropriations, i.e., "other misappropriations," "profit making misappropriations," and "misappropriations to conduct illegal activities." The three are to be analyzed together using the histogram. The precondition of the crime of capital embezzlement is "the performance of misappropriation," not the use of the misappropriated funds which is the purpose of misappropriation. The use of misappropriated funds is therefore not a determinant of the conviction of the crime. Cases having only the performance of misappropriation but not the use of the misappropriated funds, if the nature of the embezzler's performance is identified with other determinants of the crime, should be convicted of and punished by the crime of capital embezzlement.Analyzing the crime of capital embezzlement from its determinants, outcomes, and judicatory practices, we should be certain that attempted capital embezzlement is one form of the crime of capital embezzlement. An analysis on attempted capital embezzlement should be conducted according to concrete conditions and levels of the cases.