Judicial Determination Of Embezzling Public Funds

Crime of misappropriating public funds is a crime that occurs in the post crime, with the constant deepening reform of economic system, this crime becomes more and more complicated. There are many disputes about "being used by individual" and concrete uses, the target of this crime and the participant in this crime and so on during the judicial practice. Linking with practice closely, the author analyzes four main components of crime of misappropriating public funds systematically and makes a further explanation about the relative criminal law and its application. The whole article includes 7 parts: legislation of crime of misappropriating public funds; the subject; the subjective aspect; the objective aspect; the object and target; the participant in the crime; related bounds of identity.Part Ⅰ: The author reviews the establishment and development of crime of misappropriating public funds in China and introduces current legislative conditions of criminal law.Part Ⅱ: It is about the subject .According to the main clue that "engage in public service" is the essential characteristic of the state functionary, the author introduces the scope and kind of public service in several different units. At the same time the author analyzes two special problems: one is to suggest that the subject should be expanded from individual to individual and unit, the other is to analyze "any employee of a State-owned financial institution".Part Ⅲ: It is to discuss the subjective aspect. Having determined that the subjective aspect is direct intention, the author expounds the subjective expression of "misappropriating a large number and never returning". Since the subjective aspect belongs to the field of ideology and is hard to define, the author introduces the evidences on subjective aspect in three aspects: the feature of target, the use and the return of public funds.Part Ⅳ: It is about the objective aspect. After making comparison among the 1998 Interpretation of Supreme People's Court, the 2001 Interpretation of Supreme People's Court and the 2002 Legislative Interpretation, the author concludes that the essence of misappropriating is the misappropriation instead of the use of public funds. The author listsdisadvantages in theory researching and judicial practice which are caused by "being used by individual" and concrete uses treated as constitutive requirements and hold that "being used by individual" and concrete uses should not be constitutive requirements. At last the author analyzes three concrete means of misappropriating public funds: misappropriating directly, withholding and loaning.Part V: The author discusses the object and target. First, the author evaluates different opinions about the object of misappropriating public funds and holds that the "honesty of public service and the right of controlling of the special wealth by the unit" should be the object. Second, in the current legislative framework, the author classifies public funds by different standards. When putting the bankbook of the unit in pledge for an individual loan, the author negates the different identities according to whether public funds are transferred or not. Meanwhile the author holds that ordinary public property should be brought into the scope of the target and criticizes the opinion that the theory of negation can be concluded the theory of "value and use value" and "the theory of the possibility of return".Part VI: It is about the participant in the crime. This part discusses the component of the accomplice in two sides: the general part and the separated part of the criminal law.Part W: This part is about identity and difference between crime of misappropriating public funds and crime of misappropriating capital, crime of misappropriating special funds or material, crime of embezzlement. Especially on the issue that whether "escaping with misappropriating public funds" is punished for crime of embezzlement, the author holds that the interpretation of Supreme People's Court is suspected of objective culpability and it should be considered as crime of embezzlement or crime of misappropriating public funds in different situations.The article is an examination of 3-year-studying and the author elucidates some opinions about several disputed issues on crime of misappropriating public funds, this will be beneficial to the feature studying and working.