| With a view to the status quo of "the three public consumptions" in China, this paper analyzes the concept of the excessive use of public funds, discusses on the necessity and feasibility of incriminating such behavior, designs its criminal legislation, and dissects the major problems referring to the judicial application.As to excessive use of public funds, the "public funds" include currency, negotiable securities such as stock and draft, and even public goods in some particular cases."Use" is restricted to consumption and spending."Exceeding the limits" is the basic scale of the criminal penalty, the core of incrimination lies in the waste caused by "exceeding the limits". If the rationality of the standard is untenable,"exceeding the limits" does not necessarily lead to crime. Conversely, if the standard itself is reasonable, once "exceeding the limits" achieves certain level, no matter waste or not, it should be identified as a crime to ensure that everyone is equal before the law.Excessive use of public funds violated the legal interests protected by the Criminal Law, including seriously infringing on people’s interests, affecting the normal activities of state organs, destroy the integrity of the national staff, triggering a series of social contradictions and adverse effects, which do great harm on the society and should be incriminated. From the perspective of feasibility, there is a deep social base to criminalize excessive use of public funds, a tradition of punishing such behavior by laws and policies from the ancient to modern times, some extraterritorial legislation and cases available for reference, and groundwork for the behavior punishment the laid by the current law.Through comparative analysis of "waste","corruption" and other charges, this paper proposes that it is more scientific to be charged of "excessive use of public funds" and put in the chapter of Malfeasance according to the crime constitution. The subject of crime is limited to the staff members of state organs, and objective performance refers to such behavior that "taking advantage of office, use more public funds than budget standard, in relatively large amount or with serious losses to the country and the people’s interests"; it’s the starting point of prosecution for individuals that excessively use public funds amounting to RMB50,000yuan and surpassing10%of the budget, and the statutory sentence is fixed-term imprisonment of not more than three years or criminal detention, with a fine. Units can constitute this crime.Along with the enactment of criminal law, it’s also necessary to take the legislation of supporting measures into consideration, namely the "standard" shall be stipulated in the Budget Law and the local budgetary provisions respectively passed by the National and Provincial People’s Congress. On the judicial application, this paper discusses the procedure of asserting "exceeding the limits", the calculation method of criminal amount, the linkage of administrative penalty and criminal punishment, unit crime, joint crime, the standard of crime accomplishment and other issues, and compares such analogous crimes as the excessive use of public funds, corruption, embezzlement, misappropriation of particular money and misuse of authority. |
