The Determination Of The Crime Of Official Embezzlement

The formation of the crime of official embezzlement have a process from scratchin " Criminal Law of the Peoples Republic of China",From the Peoples Republic ofChina was founded to the1997when "the Criminal law" was promulgated,crime ofofficial embezzlement was not determined in the law.But by the development of oureconomy,especially with the rapid development of various types of the enterprise, thecase that people who is not the state functionary embezzle property of the company bytaking advantage of his position is more and more.To make the kind of case solvedreasonably for safeguarding the legitimate interests of the enterprises,the crime ofofficial embezzlement is stipulated in the"Criminal Law of the Peoples Republic ofChina" in1997.The article271says:"any employee of a company,enterprise or anyother unit who, taking advantage of his position,unlawfully takes possession of themoney or property of his own unit,if the amount is relatively large,shall be sentencedto fixed term imprisonment of not more than five years or criminal detention; if theamount is huge, he shall be sentenced to fixed term imprisonment of not less than fiveyears and may also be sentenced to confiscation of property.But in the specific case ofthis process also has some problems that are resolved hardly,for example:the range ofthe subject of crime,the cognizance of criminal object,the explanation of takingadvantage of the position and so on.In view of above questions, the article based on the theory of law, make aanalysis of atypical case in practice to discuss the crime of officialembezzlement,through these works,we hope to have an accurate understanding of thiscrime.the article altogether divides into three chapters:In the first chapter,we introduce the case named the official embezzlement ofMr.li;The basic facts of the case and the the decision of the court are introduced in thesecond chapter;The content of the third chapter is the introduction of the focus in the case,Itincludes three aspects:the first is about the cognizance of criminal object,the second isabout the discussion of the range of the subject of crime,the third is about theexplanation of taking advantage of the position.The fourth part is the main part in the article, in this part the author introduce the arguments and reasons on the basis of some related legal theories of the crime of officialembezzlement,and put forward the point which the author support and the reason,in orderto provide legal support for solving the case rightly. The author argues that, first of all,hecrime of official embezzlement violates complex object of crime,it not only violatesproperty only of the company, enterprise or other unit, but also violates the honesty andcredit of trust relationship.The object of crime include the units owned property,alsoinclude the property not belong to the units but under the units management, use, ortransport;secondly,the subject of crime of the official embezzlement is the people who isnot the state functionary but manage or through the unit property in company, enterpriseand other units,it has nothing to do with the fact that the people sign a written term laborcontract with the company, enterprise and other units;at the last the explanation of takingadvantage of the position in the crime of official embezzlement is people use the rightthat handle, manage the property on his position or in the performance of his duty whilehandling the property in company,enterprise and other unitsThe fifth part is the conclusion of the case, the author compare the analysis of thelaw theory to the fact of the case,put forward the view on the ruling and make areflection for the penalty of the crime of official embezzlement.