Of Perfidy Crime Legislation Is Perfect

With the remarkable development of the economy and the increasingspecialization of social division of labor, a growing number of economicactivities need to be given to others to complete. Therefore, people have theobligation to be trusted; the trustee should comply with this obligation andcomplete the matter reasonably as the client requires. Breach of trust is thebehavior the trustee who violates the trust obligation and abuses theprivilege does infringes upon the client's property interest and violates thecriminal law. Breach of trust is a common charge in the mainland ofcriminal law, such as Germany and Japan, with relatively mature theoreticalresearch and diverse viewpoints. Although the criminal law of China hasregulated the behavior of breach of trust, the efforts are still inadequate forthe sound credit system that the market economic demands. The issue is theabsence of macro and the insufficiency of micro, that is to say, the commoncrime of breach of trust has not be established to effectively regulateserious behavior of breach of trust while the special crimes of breach oftrust exist many shortages, such as distinguishing between state andnon-state, emphasizing on the amount too much. Thus, strengthen thecriminal legislation of breach of trust has practical significance andurgency.The purpose of the essay is to analyze the present special crimes ofbreach of trust from the constitution theory of crime after the definition ofthe concept and nature of the breach of trust, to sum up the shortcomings inlegislation comparing with foreign countries. Then appropriate legislativesuggestions are proposed, in order to benefit theoretical research and practical operation.The main body is divided into four parts.Part one is on the concept and nature of breach of trust. Theestablishment of this charge does not have to require a particular purpose;the consequences of the damage include tangible and intangible property.The essence of breach of trust is the abuse of privilege and the breach oftrust.Part two is on the foreign investigation of breach of trust. thelegislative cases about breach of trust of Germany, Japan, France, Austria,Switzerland and Taiwan area are analyzed from the modes of the charge,the classification, the objective elements, the subject, the purpose, whethercriminal attempts are punished, cases accepted at complaint only and thepenalty arrangement, which can directly elaborate different regulations ofbreach of trust in different countries.Part three is the focus. The author points out that the legislation ofbreach of trust has two micro issues, confusion and passiveness. Besides, tosummarize the characteristics in the conviction and punishment, the presentspecial crimes of breach of trust are analyzed in detail from the constitutiontheory of crime. They contain a common object-the credit system, thoughinvolving different aspects. In regard to the objective condition, breachingof trust and taking advantage of one's position are included; the amountwhose importance is more apparent and the circumstance of the crime playa role in conviction and punishment; the object can be attributed to thematerial, emphasizing on the protection of the property of the state. Thesubject of crime must have the specific duty. The criminal intention isessential, while the criminal purpose is not.Part Four is on the construction of the legislation system of the macro-and micro-balance of breach of trust. In the macroscopic scale, thecommon crime of breach of trust, coordinating the relationship with specialones in punishment, should be established, on the premise that the abstractof legislation and the protection of human rights should keep balance. Italso can be prescribed to the case accepted at complaint only. In themicroscopic scale, there are some problems of the special crimes of breachof trust, for example, emphasizing public interest while devaluingindividual interest, focusing on the amount, and unreasonable setting ofdescription of crime and punishment, which should be solved withcorresponding legislative improvement.