Embezzlement Of Public Funds To Research

The crime of embezzlement is a economical crime by taking advantage of duty, as to which there are still many theoretical and practical problems in dispute. On the basis of the content in Article 384 in The Criminal Law and judicial practice, this paper discuss complicated issues in judicial identifying around the determination of constructive elements of the crime of embezzlement so as to contribute to perfecting legislating against the crime of embezzlement in our country.As for the constructive elements of the crime of embezzlement, the author of this paper argues that the objects of the crime of embezzlement decide the nature of crime, therefore the correct determination of the crime objects helps to explain reasonably the difficult issues in judicial practice. The objects of the crime of embezzlement are complicated ones of which violating the incorruptibility of government officials plays an essential part in determining the misappropriate act. On the objectivity of the embezzlement, there are three main points the author of this paper is to display. First of all, in the course of confirming whether the misappropriated public funds are for private use, great emphasis should be put on the deciding the essence of the crime, that is, whether the incorruptibility of the occupational act has been violated. Second, it is from the sources and the regulating nature of law that settle whether the misappropriated public funds are to commit illegal activities. Third, as for the public funds misappropriated in ordinary use, the misappropriation of public funds can be confirmed as long as the actor embezzles the public funds without return more than three months. On the subjectivity of the crime of embezzlement, the theory of "duty plus identity" should be applied to affirm the identity of the government office workers. As for the frequent misappropriation of public funds conducted by unit's leader individually or collectively in judicial practice, the author of the paper argues that it can be solved by the theory of joint offence. On the subjectivity of the crime of embezzlement, whether it is for private benefit composes the essential element in deciding the crime of embezzlement.On deciding the desistance of the misappropriation of public funds, the author of this paper proves in detail that the act of misappropriating public funds but not using is not the accomplishment the crime, because it is due to the reason out of the control of the criminal. The author of this paper denies that there is no desistance in the misappropriation of public funds and put forwards that as long as there is evidence to prove that the actor has given up using the misappropriated public funds, the desistance of the crime exists.On the joint offence in the crime of embezzlement, the author of this paper analyzes whether the subjectivity of crime has identity and the separation of the actor and the user. The theory of consequential principal offender in the criminal law is applied to prove that the user of the misappropriated public funds can not compose the crime of embezzlement individually, but his behavior constitutes as essential element in deciding crimes.In judicial practice, due to the complexity of the misappropriation of public funds often with the acts of asking for bribes, accepting bribes, abuses of power, misappropriating public funds in smuggling and selling drugs, etc, numbering crimes and determining the nature should be handled with regard to different situations.Finally, in the light of the limitation in the expression and the regulations in Article 384 in The Criminal Law, the author of the paper suggests the cancellation of the regulation that the concrete use of the public funds composes the essential objective elements, and the cancellation of the regulation that the misappropriated public funds for private use composes the essential subjective element and in stead the supplement the regulation that "for private benefit" becomes the essential subjective element. Meanwhile, the property punishment is suggested to add and it is more accurate and complete to change the item from "the crime of embezzlement" to "the crime of embezzlement by government officials".