Embezzlement Criminal Subject

The crime subject of the embezzlement guilt is one of the essential conditions of constituting the crime. The study on it has relation to not only the distinction between guilt and non-guilt, but also the definition of the crime. Since the imputation of the embezzlement guilt was established in 1950, the crime subject of the embezzlement guilt has been changing continually along with the profound change of social lives and the continual modification of the laws, and becoming the focus of attention. A great many disputes have been aroused in both the theoretical area of the Criminal Law and the judicial practice. The unification and dignity of the legal system have therefore been badly influenced. This paper summarizes the four legislation evolvement stages of the crime subject of the embezzlement guilt, illustrates reasonably the subject range of the embezzlement guilt according to the related regulations in the current Criminal Law, ponders the problems existed in the subject legislation of the embezzlement guilt and constitutes the legislation imagination of purifying the subject of the embezzlement guilt.With a general survey of the Criminal Law (1997), the articles related to the embezzlement guilt are Article 382, Article 383 (iii), Article 394, Article 183 (ii) and Article 271(ii). In a word, the subject of the embezzlement guilt in the Criminal Law (1997) includes three types of independent persons, who are the state functionaries, the persons who are appointed by a state-owned unit to administer or manage state-owned property and the staffs of a state-owned insurance company. The subject specified in Articles 394 and 271(ii) belongs to the range specified in Article 93 of the Criminal Law and is involved into "the state functionaries". The subject specified in Articles 183(ii) is "any employee of a state-owned insurance company and any person who is assigned by a state-owned insurance company to an insurance company that is not owned by the state to engage in public service". The latter belongs to the person within "those who can be considered as the state functionaries" specified in Article 93 of the Criminal Law. However, the former is not merely restricted to the person who is appointed by a state-owned insurance company to engage in public service, in fact its intension and extension have exceeded the range of "the state functionaries" and it has become an independent type of subject of the embezzlement guilt. The crime object of the embezzlement guilt is a complex object, in which the duty incorruptness of the officials is its primary object while the ownership of the common property is its secondary object. Therefore, according to the relationship between the subject and the object of the embezzlement guilt, in the writer's view, the subject of a embezzlement guilt can be divided into the following three types. The first is the essential subject, which is "the state functionaries" specified in Article 93. The second is the supplementary subject, which is "the persons who are appointed by state organs, state-owned companies, enterprises, institutions or people's organizations to administer or manage state-owned property" specified in Article 382 (ii). The third is the special subject, which is "the staffs of a state-owned insurance company" specified in Article 183 (ii). The cognizance of the essential subject must be based on the specification in Article 93 of the general rules in the Criminal Law. Its range should include the formal state functionaries or the state department functionaries, namely the persons who are appointed by state departments to engage in public service, and the assumed state functionaries or the quasi state functionaries, namely the persons who can be considered as the state functionaries. The cognizance of the supplementary subject must correctly grasp the intension of clientage. The cognizance of the special subject should grasp its peculiarity of simply emphasizing the identityand qualification.The innate characters of the subject of the embezzlement gui...