Embezzlement Of Public Funds A Number Of Issues To Study

Crime of misappropriating public funds, as one of bribery and corruption crimes, is endowed with many disputes and knotty questions in theory and practice, which makes it hard to characterize it. Civil servants play an important role in the national political and economic life and the occurrence of crime of misappropriating public funds will result in the extremely severe social perniciousness, weakening the honesty of duties, causing loss to public property, damnifying the image of organ of the state and even leading to the social instability. From the recent survey, it can be concluded that crime of misappropriating public funds occurs more frequently and with a gradual increase of criminal sum. Basing on the basic theories of criminal jurisprudence and combining theory with practice, this paper focuses on the new phenomena of this crime, systematically discusses the constitutional theory and criminal patterns of crime of misappropriating public funds and some problems concerned in judicial practice, and puts forward some perfection advice. This paper consists of three chapters with about 30,000 characters.Chapter One: The analysis of the current situation of crime of misappropriating public funds. Basing on the current legislation and judicial interpretation, this chapter mentions the constitutional conditions of crime of misappropriating public funds. First of all, the object of this crime is public servants, mentioning the scope of public servants. Secondly, the subject of this crime is the complicated subject, including the ownership of the public property and the duty honesty of public servants, indicating that infringement of each capacity of ownership is to infringe the ownership, defining the criminal target as "the natural public funds" and "detained public funds", discussing the cases of misappropriating public property and claiming it improper not to punish the misappropriation of public property. Meanwhile, the objective condition of this crime is the direct intent, excluding the aim of illegal possession, defining misappropriation as the act of purpose and usage of public funds after misappropriating public funds as the act of motivation and regarding it improper to define the specific usage of public funds motivated in the current legislation as constitution element of crimes. Lastly, in view of the complicated subjective aspect of this crime, this paper makes a detailed analysis of the definitions of "taking advantage of one's position", "misappropriating public funds for personal use" and "specific usage" and distinguishes "taking advantage of one's position" from "taking advantage of one's work conveniences". Though Interpretation stipulates several situations of misappropriating public funds for personal use, it is necessary to specify it because of the existing problems in theory and judicial practice. In this chapter, the author makes a detailed analysis of "personal name", "personal decision"," other units" and seeking for personal interests", and classifies the specific usage of misappropriating public funds into "type of illegal activities", "type of undertaking profit" and 'type of not paying off after 3 months".Chapter Two: Discussion on some knotty questions to characterize crime of misappropriating public funds.This chapter deals with the criminal patterns, organized crimes, accusation number and transformed crime of this crime. As for the criminal patterns of this crime, this chapter analyzes the characterization of accomplished offend and attempt, and the heated problem (misappropriation but no use) in the criminal theory and claims that the completion of misappropriation has infringed the subject protected by criminal law, characterizing and dealing with it by the following two situations. In view of organized crime, this chapter analyzes the scope of organized offender, not only including the misappropriaters and users but including the non-users and discusses this problem from the following three aspects, including the organized crime between public servants, the organized crime between public servants and non-public servants and the organized crime of misappropriaters and users. The author insists that the misappropriation of public funds for illegal activities constitutes implicated offender but as joint of punishment for plural crimes. Meanwhile, basing on the current legislation and judicial interpretation, this chapter analyzes the cases of sum characterization of this crime and discusses two situations that crime of misappropriating public funds transforms to crime of corruption in specific occasions.Chapter Three: The faults of legal stipulations concerning crime of misappropriating public funds. Many problems will arise if "three usages" are characterized as its constitutional condition, resulting in misdirection of circumstances for adjudication & penalty measurement and disorder of the crime-penalty relationship. In this chapter, the author insists on eliminating the specific stipulations concerning the three usages after misappropriating public funds for personal use and claims that the stipulations have other faults, including the imprecise language, the property-oriented penalty should be established in the criminal penalty and accusation should be altered so that the misappropriation of public property can be punished by criminal law.