The Research On The Objective Elements Of The Crime Of Breach Of Entrusted Property

Perfidy use to contain the breach of trust "should be entrusted with property crime charges, so our special breach of trust, its theoretical foundation is the theory of ordinary breach of trust, and explore the legislative history of modern China and the history of legal thought and does not appear on the modern sense of the breach of trust legislation and theory, but in reality a large number of "perfidy" of illegal criminal activities, need to have a special charge to be regulation, breach of trust case in point with the trustee of property crime, but this counts since into crime more than six years, in judicial practice, but less applicable, which can not help but doubt whether the breach of trust of Entrusted Property crime is the criminal law consequences of excessive intervention in the economic field? Ho-based crime for breach of fiduciary duty, unauthorized use of the behavior of clients’assets? How to understand the reality of this crime under the fiduciary obligation? Unauthorized use of the how to identify? How to define the behavior of the scope of this crime? Where are the boundaries and general violations and misappropriation of funds, illegal use of capital crimes other criminal? Based on these questions, the objective elements of the crime of breach of trust to the use of fiduciary property study.The text of this paper is divided into four parts.The first part, breach of trust use of entrusted property crime legislation and its objective elements. First investigated this crime in our country’s legislative history and legislative significance, breach of trust to use the disputes of entrusted property crime in the legislative stage and modify the finishing of the argumentation process, trying to truly original sin through the interpretation of the controversial content and legislators to legislative purpose and the mind and in reality a large number of financial institutions in breach of fiduciary duty, unauthorized use of clients ’assets for high-risk investments, the phenomenon of the pursuit of high profits and serious violations of the security of clients’ assets to disrupt the order of the Financial Planning, has not been effective legal regulation. Combined with the analysis of existing similar offense, the argument of the penalty provisions of breach of trust fiduciary property crime in line with China’s mode of financial legislation and legislative concepts, in line with the final means of criminal law and Modesty, is not excessive expansion of financial crime. Second, according to the preamble of this article the objective elements of the crime research to do literature searching, all the objective elements of the view analysis and to ask questions and perspectives for the following laying the groundwork. Finally investigated the application of this crime in the judicial practice, very few precedents, and analyze the reasons for this phenomenon, confusion breach of trust on the use of entrusted property crime in the judicial practice, a single from the theoretical level, analysis of the main provisions of the act of the crime, including the objective basis of behavior, and the mode of behavior and the behavior of objects in understanding obstacles, in theory, this also there are many disputes, resulting in a confusing situation in the judicial practice.The second part, breach of trust to use the object of the crime of fiduciary property. According to the criminal object of great significance, and a number of complaints of crimes objects exist in theory of the crime, customer deposits listed objects of this crime, that this crime should not cover the assets of the trust property, real estate, intellectual property, view that the scope of clients’ assets should not be limited to medium trust management business, for these controversial questions, the study of the objective elements necessary to define the scope of the criminal object. Combination formulation of the provisions:the customer funds or other entrusted trust property ", and according to the interpretation of semantic analysis, preliminary criminal object of the crime is defined as three categories:customer commission, trust funds, clients entrusted property, customer trust of property. The combined analysis of the different points of view the reasons and found that one of the loopholes and demonstration logic error, and finally, according to the provisions of a law on financial institutions trust management business, define the scope and content of the three types of client assets. The paper argues that should be limited to the business of trust management, including the Financial Services and commissioned by the sale of securities and futures business.The third part, the use of entrusted property crime of acts of perfidy. The definition of behavior analysis is the focus of this article, first from the formulation of the provisions of this crime under the fiduciary obligation as the objective basis of behavior, the fiduciary obligation of clearly defined analysis of the behavior of great significance to the fiduciary obligation in the legislative stage understanding of the controversy on the interpretation of the legislators of fiduciary duty, including the contractual obligations including statutory obligations in this paper agree with this interpretation, and, combined with the scope of crimes objects on a specific fiduciary obligation to the content and scope of proposed should limited commissioned by the Financial Services and the statutory obligations of the faithful investment obligations, and not all the contractual obligations and legal obligations. Secondly, to explore the nature of the offense for the definition of connotation and denotation of the use of unauthorized use of behavior analysis, the unauthorized use of contact examine the relationship between its fiduciary obligation, and through analysis and interpretation of the method to identify its intrinsically linked and the nature of constraints on the offense and embodiment. Finally, the amount of crime investigated, focusing on the interpretation of other serious circumstances, this article that the serious circumstances of the proposed standards should be objective and quantifiable.The fourth part of this crime and related crimes the difference in the objective elements. By case analysis in the form of easy confusion on the objective elements of this crime, the crime of misappropriation of funds, embezzlement, illegal use of a capital crime, the crime of illegal business, illegal crime of deposits from the public the difference, find some elements of overlap time difference between the two key elements of the offense, such as the crime and the staff of financial institutions misappropriation of funds in trust management business as a fiduciary obligation to people party, used his position to facilitate and breach of fiduciary obligations, and unauthorized misappropriation of client commissioned the circumstances of the trust funds The difference between the behavior is the key to constitute which offense is the nature of the act, that the staffs behavior is a natural person acts or unit behavior. Specifically identified to distinguish between different specific analysis. And the difference between the objective elements of the other charges, too, by the difference in the objective elements of this crime and other offenses can better verify the reasonableness of the definition of this crime, and behavior of objects, a similar situation in reality processing to provide a theoretical reference and ideas.