A Demonstration On The Convertion Between Unjust Enrichment And Crime Of Embezzlement

As a crime to be handled only with complaint,the study on the crime ofembezzlement currently is mainly focused on the controversial issues in the domesticjudicial practice like the object of crime,the define of act of embezzlement and therelationship between the crime of embezzlement and unjust enrichment.With thestudy becoming increasing thorough,more and more scholars find that it’s far fromtheir goal only studying the crime from the criminal law prospect,for thesecontroversies are concerned with overlapping of the civil and criminal more or less.The crime of embezzlement is quite different from other property crime such aslarceny and fraud of which the objective behavior is characterized by infringing theoriginal position and establish the new possetion.To be specific, generally the authorwould be considered as conducting a crime if the property he try to capture is underthe position of someone else. While for a man conducting the crime of embezzlement,he only infringe the ownership of the property as the victim’s property is alreadyunder his control through some legal relations. Unjust enrichment is a traditional civillaw institution both in civil law system and common law system. And in China, itseems the institution don’t get enough attention from mainland scholars, especially onits relationship with criminal law. Because of the complicated legal relationships thereexist such cases as concern civil matter and criminal matter in daily life.Whether unjust enrichment can constitute the position that makes sense to the crime of embezzlement is still a controvesy in judicial practice.The author think theoverlapping of the criminal and the civil is an inevitable and objective phenomenon injudicial practice as a result of the division of labour between department of law andthe overlapping among legal obligations.Although the civil law and the criminal lawis independent law respectively,what they regulate is not two isolate and parallelfields which has nothing to do with each other.There exist some fields regulated bythe civil law and criminal law.And when a legal fact meets the elements of unjustenrichment and crime of embezzlement,this fact would make sense both in the civillaw and criminal law.The paper try to review the overlapping issue between the unjust enrichment andthe crime of embezzlement.Firstly,by introducing some typical cases the paper pointsout that the overlapping phenomenon of unjust enrichment and the crime ofembezzlement is an objective existence.To take one step further, unjust enrichmentand the crime of embezzlement are not competing. In the following part,the author tryto identify unjust enrichment and the crime of embezzlement reasonablely by givingan overview on these two basic theory.On the grounds of that,the paper try todemonstrate that unjust enrichment can transformed into the crime of embezzlementthrough three aspects including the object of crime,act of embezzlement andmodestly restraining spirit possessed by the crime of embezzlement as a crime to behandled only with complaint.