Embezzlement Difficult To Study

As the new accusation stipulated in 270th article of criminal law 1997, the crime of embezzlement do good to the performance in punishing the behavior of invading, promoting the development of economy, fully protecting the human rights in the condition of market-oriented economy, and protecting the property rights of all nature in every respects. However, because the Legal article is general, there are a great number of disagreements between theory and practicing field. Nowadays, the discussion still exists, but they are almost focusing on a certain part of this accusation, not systematic and complete.The author makes further conferring about the crime of embezzlement based on other's opinions. This essay's material is sufficient, the orderliness is clear. The essay is divided into five sections, as follows:Section 1: the conception of embezzlementIn this section, the author states and analyses the different opinions about the conception of embezzlement in the theory field, points out the flaws of these definitions, and approves the comprehensive opinion.Section 2: the objective body and object of embezzlementThe author approves the opinion that public property is included in the objective body of this crime, and proves the suggestion from both legislation and practice. To define the other's property that the criminal preserves temporarily, the author suggests that immovable property, invisible property, typical articles and booty can be included in this extent, and gives my excuse about the opinion. Refer to articles forgotten by other person and articles buried by other person; the author suggests that there is a vague standard to distinguish the articles forgotten by others and the articles lost by others. So we shouldn't give different evaluation in the criminal law. Finally, the author also gives reasonable definition of the articles buried by others, points out that the belonging of buried articles' property should contain country, collective, other individuals, corporations, and organizations.Section 3: the objective behavior of embezzlementIn this section, the author divides the objective behavior of embezzlement into possessing and invading, and gives elaboration to each of them. To definiting the state of possessing, the author attempts to let the reader agree that the state of possessing should lay stress on the fact, not just based on legithnate state. Besides, the author also elaborates properly the mode of invading and how to establish the time limit of refusing to turn back, and suggests that once the person expresses his refuse to turn back the articles to the people who have property for the first time, the refusing is established. If other elements exist, he will be excused the crime of embezzlement.Section 4: the boundaries to be related to the embezzlementThe author analyses the differences between embezzlement and other similar crimes combining specific case. These crimes include larceny, fiaud and duty occupation. Through analysis, the author makes a clear distinction between them and lets the reader know whether the embezzlement is or not. The essay at this section pays great attention to study the differences between larceny and embezzlement, and points out that the critical to distinguish the differences between occupying the articles forgotten by others and larceny is to establish which kind of control state the property in, then discusses four control states, including area control, eye's control, beside control and notion control. This article also discusses the standard of this crime's accomplishment, points out the key is to determine the existence of refusing to turn back.Section 5:the nature of embezzlement's litigation moodCriminal law provides that the crime of embezzlement is handled only upon complaint. The litigation mood can let the practice meet an awkward situation. We should refer to the litigate proceed of other crimes which are also handled upon complaint, provide an exceptional situation to use public prosecution to the situations that occupying forgotten articles, buried articles of others' and articles of uncertain property, also to the serious situation as occupying large amount of property belonged to country or collectives. And give the litigate right of private prosecution to the people who is close to the victim to embody the spirit of private prosecuting accusation.