Embezzlement Of Public Funds A Number Of Issues To Study

Defalcation is a crime by taking advantage of the state personnel's duty. Now it presents a frequent tendency its constitution is more complicated than other most crimes, the rate of exposed cases is high in practice, at the same time, it has many difficult problems. Therefore, close attention to the crime so that the judicial personnel have different understanding. It is difficult to apply in judicial practice.This article divided the problems which should be clarified into three parts on the basis of countermesures, practice and theory analysis.Part one: the subjects of the crime are the state personnel, including the personnel in state organizations and the quasi state personnel. The basic characteristic is whether the suspect is the officer bearer; subjectively, it must be committed by direct intention. If the nature of the enterprises in which state invests and buys shares, cannot be decided the appropriating action can only be judged according to the membership of the state personnel, then decide to punish by the crime of misappropriating public funds or the normal funds. At the same time, the persons who are entrusted to manage and operate the public property by state, organizations, companies owned by the state, enterprises, institutions, people's organization, also should be considered as the subjects of the crime. In a special chapter, whether unit can become the subject of the crime will be discussed.Part two: this part is about the object of the crime, namely, according to what to define the crime. Here the article analyses the difference between the public funds on the crime and the general public funds, and defined the public fund on the basis of the combination of theory and practice. The article further probes whether it is the crime to appropriate other public funds including general public property, the negotiable security that can be exchanged the cash such as the treasury notes, bond, stock, check, etc.; puts forward the author's viewpoints; compares appropriate the specific property to support the statement in this article. Part three: from the objective aspect, the suspect should take advantage of the convinent conditions and his power to appropriate the public funds for personal use. To be more specific, there are types of actions, that is, "illegal action", "profitable action" and "failure to return within time limited". Illegal action comprises profitable unlawful action as well as unprofitable unlawful action. And therefore, it intercrosses with the second type. The three types differ from each other in the constitution of crime. In real life, misappropriating and embezzlement are difficult to deal with. Some in favor of objective, some in favor of subjective, we should carry on the comprehensive evaluation with the unification rule of subjective and objective.Through above research and discussion, the author tries to reorganize the thinking of the certain judgment and the understanding; and provides an evaluation standard and a value orientation for each kind of phenomenon in practice based on the Defalcation, so that it can serve for the judicial practices and theory researches from the aspect of reference.