| Defalcation crime is a common duty crime. It has many difficult problems in judicatory practices. And perplexes the judicial actual situation. It also brings the rise of the academic circles in the penal law. Particularly the problem of amount counting in defalcation has not completely solved, neither by the penal legislation nor by the supreme procuratorial court and the Supreme Court. This article using the methods of, historical analysis, jurisprudential analysis , and the comparison , takes the amount of defalcation as the topic of study. With judicatory practices, preliminary probing the importation in legislation of the amount of the defalcation and put forward the suggestion to perfect the amount accounting in defalcation crime. The article is divided into five parts totally:The first part: General expressing the defalcation crime legislative origin and the development in our country. Properly understanding the explanation in legislation and jurisdiction. Clearing and definite the concern definition and expound the necessary in studying the amount of presuming in defalcation.The second part: From several parts to clear and definite defalcators. Proceeding the define to the scope of the public funds, more detailed expatiated the ownership kind of the public funds, negotiable security and general public property can become the crime object etc.The third parts: Putting forward the principles should follow to define the defalcated amount. The guilt and punishment should accommodate. It request to define the defalcated amount must be unified with the defalcator's subjective crime and objective situation.etc.The forth part: Detail discussing and analyzing the difficult problems to define the defalcated amount in the judicatory practices.1) For the defalcation in many times. Present justice explanations only has principle regulations. Specially in using should pay attention to the differenceIVbetween the purpose and uses.2) Under the circumstances for defalcation together. If the persons all have the specific principal part of status to defalcated together,the amount to defalcated together could be define as each person's defalcation. But for the using amount for each defalcator should take into consideration for their measurement in penalty. Etc.The person with the specific principal part of status ansd the person's without defalcated together and used by the person without the specific principal status ,The defalcator should be defined according to the different circumstances.3) According to the difference in different kinds of guarantee. Using the public funds for the guarantee, when the debtor cannot have the ability to pay for the debt, it comes to be the defalcator. But when used for the pawn and hypothecation, as soon as the amount comes to the certain standard to place a case on file for investigation and prosecution, it'll constitute the defalcation crime.4) Concerning the defalcated in stocks . In judicatory practices, we must analyze and grasp the features in defalcation ,the interests for the holders and the featurnes for exchange.5) For the problem "defalcated but unuse ", in the judicatory practices. Under this article , it's pointed that based on the penal theory and analyzing the point of view to protect the public funds. This action should constitute the defalcation crime. "Defalcated but unuse" only could be a plot in the measurement of penalty.6) When taken along the defalcation and absconded. It'll be changed to the corruption crime. The illegal taken amount will be defined as the corrupt amount.7) To define the large amount of defalcation without return. In this article, it pointed that up to the first instance ,the large amount of defalcation still not return, it should be taken as the large standard. It'll goods for the country to solve the economic lost.The fifth part: Concerning judicatory explanation, the penal law and the twovSupreme Courts for the define regulations to the amount of the defalcation and point out my own views in concerned regulations. T... |
PDF Full Text Request