A Study Of Some Difficult Problems Of The Crime Of Embezzlement

The Crime of Embezzlement is a sort of Crime against Property. It is a newly-added accuse in 1997 Criminal Law. Before the promulgation of the 1997 Criminal Law, the embezzlement cases in real life are tackled according to the relevant provisions of the Larceny by analogy. The 1997 Criminal Law has definitely abolished analogy system and has incorporated the Crime of Embezzlement into the Criminal Law system, which is a great progress of legislation. While the embezzlement cases in judicial practice are very complicated and the provisions of the Crime of Embezzlement in Criminal Law are too simple and general, what is worse, there is few specific judicial interpretation to the Crime of Embezzlement, which all together have resulted in the confusion in the application process. Thus, some complicated and difficult problems of the Crime of Embezzlement need to be deeply analyzed and studied.This thesis chooses several issues about the crime target of Embezzlement, embezzlement act, "refusing to return or refuse to hand over" and the determination of the Crime of Embezzlement to be studied and discussed. For these problems, I think:First, the illegal entrusting objects can not be the criminal target of the Crime of Embezzlement, the determination of booties embezzlement must be classified to different specific situations, the embezzlement of the whole sealed objects is regarded as the embezzlement of its content, and there are differences between the mislaid property and lost property which need to be distinguished through the modification of the Criminal Law to perfect the differential standards. Second, the essence of embezzlement act is the shift of "legal possession" to "illegal possession", "legal possession" is a prerequisite for embezzlement act, "illegal possession" is the core element of embezzlement act, the embezzlement act can be action and inaction. Third, "refusing to return or refusing to hand over" can not be identified with "illegal possession", and it is under the category of the embezzlement act. I also put forward some understanding to the questions:the representation methods, represented objects and determination time limit of "refusing to return or refusing to hand over". Fourth, the Crime of Embezzlement and unjust enrichment, the Crime of Embezzlement and the Crime of Fraud have much in common, but there are obvious limits between them. Based on the theoretical analysis, I analyze and determine the two typical cases which has aroused big rift in real life. I think the key point of distinguishing the Crime of Embezzlement from other Crime against Property is who possesses the property.