| The crime of embezzlement is a kind of criminal act that somebody holds his/her illegal property of others for his/her own. It is a typical natural commit, and as early as the ancient China, there are relevant requirements in criminal law. However, in 1979 the Penal Code does not provide for them, the reason is that legislators believe that the time has been provided in the Criminal Code of theft, robbery and the crime of corruption against the state staff, and the addition of act occupating public and private property are not harmful to society, they do not have that as a crime. But, with the deepening of reform and opening up policy and rapid economic development, new types of occupation acts of the continuous emergence, which social hazardous nature also aggravates day by day. In such a social background, it is imperative that the crime of Embezzlement was included in the Criminal Code. In view of this, Embezzlement created as the 1997 Penal Code 270 with a view to restrict the serious encroachment on the property of others. Since then, the country's academics immediately launched a heated discussion, which includes not only the study on the main elements of the crime , elements of the object, and subjective and objective elements , but also including information on the existence of the crime of attempted morphology, and so on. These research results on the judicial practice play a great role in guiding. however, there were some insurmountable problems under the current theoretical understanding , the authors even believe that the current theory of the theoretical circles still exists in certain deviations in the understanding of the nature of the crime. In addition, According to the survey, in the Court's judicial practice, perpetrator had been identified as the crime of Embezzlement was few, it seems that the Legislative mind has not been realized. why not? Under what circumstances should access this crime? These problems are worth further exploration. Therefore, the study of the essence of the crime of Embezzlement and judicial practice has considerable theoretical value and practical guidance.This paper is based on the recognition of Embezzlement established on the basis of reasonable, aimed at that seeks to provide theoretical support. The full text of about 30,000 words, is divided into two parts:Partâ… : the crime of Embezzlement interpretation of the essence. From the four elements of a criminal proceeding, This paper will analyse criminal nature of this crime. The crime of Embezzlement is a kind of action which changes for the legitimate possession of illegal appropriation, possession, and management.First, re-defining the object of the crime of Embezzlement. From the harmful of acts to society to consider, the object of the crime of embezzlement should be not only include public and private property ownership , also include other connatural right and the right of possession, on the occasions of the occupation of commissioned property, the object of the crime should also include commissioned by the trust. At the same time, I also think that since the crime target manifest the object of the crime, then on the occasions of the object of the crime has beenidentified, to discuss the scope of crimes target does not have any significance.Second, re-defining objective elements of a crime. First, on the cognizance of the nature of Embezzlement, on the occasion of the occupation targets being the commissioned property, embezzlement action is a kind of acts that breaching of the Agreement by the commission, the actor based on the relationship of trust possesses property of the others, and implements the action of ultra vires and objectively bringing damage or the danger of damage to the exercise of the rights of the client, on the occasions of embezzlement target being property forgotten or enbedded, action of embezzlement is that the actor based on the wrong of the possessor or other legitimate chance, possesses the property of the others, implements the action of objectively bringing damage or the danger of damage to the exercise of the rights of the client. Secondly, the "large amount", "refusing to return or surrender" is a part of objective, but is not a necessary condition for the establishment of Embezzlement.Third, the outline of subject of the crime of embezzlement. subject of the crime of embezzlement is defined as the "people" on the legal significance.The necessary condition of subject of the crime of embezzlement is the ability, the perpetrator at the time for Embezzlement, with the understanding of their occupation of the illegality of the act and the ability to control their own behavior not implemented.Fourth, re-defining subjective elements of the crime of embezzlement. Embezzlement in the subjective requirement is occupied with the perpetrator intentionally. The so-called occupation is the deliberate act of a person subjectively all illegal possession, illegal use , illegal income, illegal manage and even the meaning of illegal control.Partâ…ˇ: probing into the judicial application of the crime of embezzlement. In this part, the author will expound the reasons that in the current judicial practice, the final judgement on the crime of the embezzlement is relatively small number, and proceed to put forward which conditions and circumstances this crime should have in the application process.First, the judicial reality and the reasons of the crime of Embezzlement. Currently, the judicial status of this crime can be summed up as follows: "absolute no matter" of the public security organs and "relatively regardless" of the court. The reason is that the duties of the public security organs is not specific and the courts recognizes the existence errors in the penalty Modesty principle.Second, the application of the crime of Embezzlement. This part, I will distinguish between cases accepted by the public security organs and cases accepted by the court, respectively, to take different approaches.Finally, in the conclusion of this paper, the author of the articles will straighten out the whole idea, and sum up the necessary conditions and sufficient conditions of the establishment of this crime . In the hope that the viewpoint of the author will play a positive role in the judicial practice in future, and play a role in deepening the understanding of this crime in theory field. |
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